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.
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.
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.
We hope this article helps answer some of your questions. Stay safe!
We hope this article helps answer some of your questions. Stay safe!