Working for Justice

Coronavirus and the Americans with Disabilities Act: Unpacking Recent EEOC Guidance

Posted April 1st, 2020 by in Employment Discrimination.

As the coronavirus pandemic unfolds, working people are faced with a number of significant challenges, from navigating extended periods of working remotely to experiencing mass layoffs. Because the current situation is in many ways unprecedented, it can be unclear what an employer may legally require of an employee during this time.

In March, the EEOC, a federal agency responsible for enforcing civil rights laws in the workplace, published an article discussing the interplay between the Americans with Disabilities Act (“ADA”) and the current pandemic. The ADA is a civil rights statute that applies to all employers with 15 people or more and protects covered employees from discrimination based on disability.

The EEOC’s article refers readers to a guide published by the EEOC during the H1N1 outbreak in 2009, entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” which the EEOC recently updated to include information relevant to the coronavirus pandemic. This guide addresses some pertinent questions for people who are on the job or searching for work during the coronavirus pandemic, summarized below:[1]

Applying for a Job During the Coronavirus Pandemic

1. Can a potential employer ask me questions about my health or require me to undergo a medical exam before offering me a job?

No. Employers covered by the ADA may not ask about your health status or require you to take a medical exam before offering you a job.

2. If an employer conditionally offers me a job, can the employer then ask me questions about my health or require me to undergo a medical exam before I start work?

Yes, so long as the employer also requires all other people entering the same job category as you to answer the same questions and undergo a medical exam. During the current pandemic, this means that your employer is allowed to screen you for symptoms of COVID-19, the disease caused by the coronavirus, after offering you a job, provided they also do so for all other employees entering the same job.

3. Can an employer delay my start date if I have COVID-19 or symptoms associated with it?

Yes.

4. Can an employer withdraw my job offer if I have COVID-19 or symptoms associated with it and the employer needs me to start immediately?

Yes. Because current CDC guidance states that you cannot safely enter the workplace if you have COVID-19 or symptoms associated with it, your employer can rescind your job offer if they need you to start immediately.

Employment During the Coronavirus Pandemic

1. If I am displaying flu-like symptoms at work, can my employer send me home?

Yes. Current guidance from the CDC states that employees who become sick with flu-like symptoms at work should leave the workplace. Therefore, your employer is permitted to send you home if you have COVID-19 or symptoms associated with it.

2. If I call in sick, can my employer ask me information about my symptoms?

Yes. If you report feeling sick at work or call in sick, employers may lawfully ask you questions to determine if you have or may have COVID-19. Given current guidance from health authorities, this means that employers can ask whether you are experiencing fever, chills, cough, shortness of breath, or sore throat, which are all symptoms associated with COVID-19. However, once your employer gets this information, they must keep it confidential, consistent with the ADA confidentiality requirements.

3. Can my employer take my temperature when I show up for work?

Yes. During the current coronavirus pandemic, employers may measure employees’ body temperature. However, if you have a fever or other symptoms, your employer must keep this information confidential.

4. If I am not displaying symptoms, can my employer ask me whether I have an underlying health condition that would make me particularly vulnerable to complications from COVID-19?

No. This would qualify as a “disability-related inquiry” and is prohibited by the ADA.

5. Can my employer encourage me to work from home during the pandemic?

Yes. In addition, if you are a person with a disability that puts you at a high risk for complications related to COVID-19, you can ask to work from home as a reasonable accommodation during the pandemic.

6. Can my employer require me to wash my hands or wear personal protective equipment (e.g. a face mask, gloves, or a gown) to protect against infection?

Yes.

7. Is my employer still required to provide me with reasonable accommodations for my disabilities which are unrelated to COVID-19?

Yes. The ADA continues to apply during the pandemic and employers are still required to provide you reasonable accommodations for disabilities that they are aware of.

Returning to Work After the Coronavirus Pandemic

1. When it is time for me to return to work after the coronavirus pandemic, can my employer require me to provide a doctor’s note certifying that I am fit to return to work?

Yes. However, the guidance from the EEOC notes that, in practice, doctors or other health care professionals may be too busy after the pandemic to provide this documentation. Therefore, the EEOC suggests that employers consider new approaches such as having clinics provide a form, stamp, or email certifying that you do not have COVID-19 before you return to work.

While employers can and should put measures in place to keep people safe during the coronavirus crisis, it is never acceptable for your employer to discriminate against you on the basis of your disability, race, national origin, religion, gender, or age. If you believe you have been the victim of discrimination in the workplace, you should speak with an attorney. Sanford Heisler Sharp, LLP has experienced employment lawyers based in New York, Washington, DC, Baltimore, San Francisco, San Diego, and Nashville.

Footnotes


[1] Note: all answers assume that the ADA applies to your employer or potential employer. If your employer employs less than 15 people, this information is not applicable.

Kate MacMullin is an Associate in the New York office of Sanford Heisler Sharp, LLP, a national law firm with offices in Washington, DC, New York, California, Tennessee, and Maryland. She received her B.A. magna cum laude from Brown University and her J.D. magna cum laude from Harvard Law School.
More About Kate

Share this Post

Categories

Tags

Archives

Back to Top