What You Should Know About COVID-19 and the ADA as it Pertains to Work
The above is a picture of a book with the title "The Americans with Disability Act".
Disability-Related Inquiries and Medical Exams
The ADA restricts how much medical information an employer may ask for from any applicant or employee. As some employers are starting to bring employees back into the office, we thought it timely to present to you your rights under the ADA. This article will attempt to answer questions around your ADA protections as it pertains to COVID-19. Whether you are applying for a position or already an employee, we have tried to answer your questions here.
Please note that before
making a conditional job offer to any applicant, disability-related inquiries
and medical exams are generally not allowed. The questions and exams are
permitted, however, between the time the employer makes the offer and when you
begin work, only if these questions and exams are required for everyone in the
same job category. Please know that once you begin work, any disability-related
questions or medical exams must be job related and consistent with business
necessity.
Below are a series
of questions that may help you understand your rights as it relates to the ADA
and COVID-19. The date the EEOC answered the questions follows the question. This information was gathered from the EEOC website.
During a pandemic, ADA-covered employers may
ask such employees if they are experiencing symptoms of the pandemic virus. Symptoms
particularly asked for COVID-19 are fever, chills, cough, shortness of breath,
or sore throat. Your employer must keep all information about your illness as a
confidential medical record in compliance with the ADA. This list may expand as
public health guidance emerges.
2.
Can an ADA-covered employer take my body temperature during
the COVID-19 pandemic? (3/17/20)
Generally, measuring a body temperature is a
medical examination. However, because the CDC and state/local health
authorities have acknowledged the community spread of COVID-19 and have issued precautions,
employers may measure employees' body temperature. However, employers should be
aware that some people with COVID-19 do not have a fever.
3.
Does the ADA allow employers to require employees to stay
home if they have symptoms of the COVID-19? (3/17/20)
Yes. The CDC states that employees who become
ill with symptoms of COVID-19 should leave the workplace. The ADA does not
interfere with employers following this advice.
Yes. this permitted under the ADA.
5.
May
an employer administer a COVID-19 test (a test to detect the presence of the
COVID-19 virus) when evaluating an employee’s initial or continued presence in
the workplace? (4/23/20;
updated 9/8/20 to address stakeholder questions about updates to CDC guidance)
The ADA requires that any mandatory medical
test of employees be “job related and consistent with business necessity.” Given
the current circumstances of the COVID-19 pandemic, employers may take
screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to
the health of others..
6.
CDC said in its Interim Guidelines that antibody test
results “should not be used to make decisions about returning persons to the
workplace.” In light of this CDC guidance, under the ADA may an employer
require antibody testing before permitting employees to re-enter the workplace? (6/17/20)
No. An antibody test constitutes a medical
examination under the ADA. In light of CDC’s Interim Guidelines that antibody test
results “should not be used to make decisions about returning persons to the
workplace,” an antibody test at this time does not meet the ADA’s “job related
and consistent with business necessity” standard for medical examinations or
inquiries for current employees.
The EEOC will continue to closely monitor
CDC’s recommendations, and could update this discussion in response to changes
in CDC’s recommendations.
7.
May employers ask all employees physically
entering the workplace if they have been diagnosed with or tested for
COVID-19? (9/8/20; adapted from
3/27/20 Webinar Question 1)
Yes. The employer can ask as long as they ask
all employees who will be physically entering the workplace, and ask if they
have been tested for COVID-19
Also, the employer may prevent those with COVID-19,
or symptoms associated with COVID-19, from entering the workplace because, that
person or persons would pose a direct threat to the health or safety of others.
Please note that they employer cannot ask these questions if you are working
remotely.
8.
May a manager ask only one employee—as opposed
to asking all employees—questions designed to determine if she has COVID-19, or
require that this employee alone have her temperature taken or undergo other
screening or testing? (9/8/20;
adapted from 3/27/20 Webinar Question 3)
The employer has to have a reasonable belief from
objective factors such as fever, cough, and other COVID-19 symptoms as
described above to ask only a particular employee to answer such questions, or
to have his/her temperature taken or ask for other screening measure or
testing. The ADA should not interfere with employers following recommendations by the CDC when, and for
whom testing or other screening is appropriate.
9.
May
an employer ask an employee who is physically coming into the workplace whether
they have family members who have COVID-19 or symptoms associated with
COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 4)
No. that is prohibited. However, an employer can
ask employees whether they have had contact with anyone diagnosed with COVID-19
or who may have symptoms associated with the disease?
10. What may an employer do under the ADA if an
employee refuses to permit the employer to take his temperature or refuses to
answer questions about whether he has COVID-19, has symptoms associated with
COVID-19, or has been tested for COVID-19? (9/8/20; adapted from
3/27/20 Webinar Question 2)
Under the existing circumstances, the ADA
allows an employer to bar an employee from physical presence in the workplace
if he/she refuses to have his/her temperature taken or refuses to answer
questions about whether he has COVID-19, has symptoms associated with COVID-19,
or has been tested for COVID-19. Alternatively, if an employee requests
reasonable accommodation with respect to screening, the usual accommodation
process should be followed.
11. During the COVID-19 pandemic, may an employer
request information from employees who work on-site, whether regularly or
occasionally, who reports feeling ill or who calls in sick? (9/8/20; adapted from Pandemic
Preparedness Question 6)
Due to the COVID-19 pandemic, employers may
ask employees who work on-site, whether all the time or some times and report
feeling ill or who call in sick, questions about their symptoms as part of
workplace screening for COVID-19.
12. May an employer ask an employee why he or she has been absent from work? (9/8/20; adapted from Pandemic
Preparedness Question 15)
Yes. Asking why an individual did not report
to work is not a disability-related inquiry. An employer is always entitled to
know why an employee has not reported for work.
13. If the employee returns from travel during a
pandemic, whether for business or personal reasons, must an employer wait until
the employee develops COVID-19 symptoms to ask questions about where the person
has traveled? (9/8/20;
adapted from Pandemic Preparedness Question 8)
No. Asking questions about where an employee has traveled would not be disability-related. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.