- April 27, 2020
- Alerts
Disability-Related Inquiries and Medical Exams During the COVID-19 Crisis
The Equal Employment Opportunity Commission has issued new guidance for workplaces, dated April 17, 2020, as they start the process of preparing for the impending re-opening of their entities in the face of the Covid-19 pandemic. The following provides clarity on how to respond to disability-related inquiries and medical exams during the Covid-19 crisis. Importantly, it is critical that one stay abreast of any new developments through vigilant scrutiny of new governmental releases or inquiries with counsel concerning this subject matter, particularly given the rapid pace at which the governing law in this area is changing as the Covid-19 crisis evolves.
Question 1: How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
Answer: During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Question 2: When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms the EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19?
Answer: As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.
Question 3: When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
Answer: Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
Question 4: Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
Answer: 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.
Question 5: When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty?
Answer: Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
* * * * *
Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.
Question 1: How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
Answer: During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Question 2: When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms the EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19?
Answer: As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.
Question 3: When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
Answer: Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
Question 4: Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
Answer: 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.
Question 5: When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty?
Answer: Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
* * * * *
Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.