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The Equal Employment Opportunity Commission Issues Additional Guidance Regarding COVID-19 and the Americans with Disabilities Act.

On April 9, 2020, the Equal Employment Opportunity Commission (“EEOC”) provided updated Technical Assistance Questions and Answers regarding COVID-19 and the Americans with Disabilities Act (“ADA”).  This is a summary of the pertinent parts of this Technical Assistance.

Employee Sick Call Out for COVID-19 Related Reason

When an employee calls out sick for COVID-19 related reason, an employer may ask the employee whether he or she is experiencing any COVID-19 symptoms.  Specifically, an employer may ask the employee whether he or she is experiencing any of the following:  fever, chills, cough, shortness of breath, or sore throat.  When asking these questions, the employer does not violate the ADA.  Employer must keep such information confidential.

Employer Work Entrance Screening

When screening employees entering the workplace, an employer may take employees’ temperatures.  In addition, the employer may ask each employee whether he or she has experienced any COVID-19-related symptoms as identified by the Centers for Disease Control (“CDC”), other public health authorities and other reputable medical sources.  Such symptoms include fever, chills, cough, shortness of breath, sore throat, loss of smell, loss of taste, nausea, diarrhea, and vomiting.  Asking such questions will allow an employer to determine whether an employee’s presence at the workplace would present a direct threat to the safety of the employer and his or her co-workers.  This course of action does not violate the ADA.  Employers must keep abreast of the latest symptoms as identified by public health authorities, so that they can ask the appropriate questions during such screenings.

Employee Displaying COVID-19 Symptoms

When an employee exhibits symptoms of COVID-19 while at the workplace, the employer can direct the employee to go home.  This directive does not violate with the ADA.

Employer Requiring Employee to Provide Doctor’s Note Prior to Return to Work

Under the ADA, an employer may require an employee to provide a doctor’s note certifying fitness for duty before he or she is allowed to return to work.  The EEOC has acknowledged that during the COVID-19 pandemic, doctors and other healthcare professionals may be too busy to provide such a note and “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.”

Employer’s Maintenance of an Employee’s COVID-19 Related Documents

Pursuant to the ADA, an employer must place an employee’s COVID-19-related documents in the same file that it keeps the employee’s other medical information.  This file must be separate from the employee’s personnel file.

Employer’s Ability to Disclose the Identity of Employee with COVID-19

An employer may disclose the identity of an employee who has COVID-19 to a public health agency.  This disclosure does not violate the ADA.

Hiring and Onboarding New Employees

According to the EEOC, an employer may screen applicants for symptoms of COVID-19 after making a conditional job offer.  An employer must screen all entering employees in the same job category.  As part of a post-offer, pre-employment medical exam, an employer can take the newly hired employee’s temperature.  Further, an employer can delay the start date of a newly hired employee who has tested positive for COVID-19.  If the employer needs the newly hired employee to start immediately, and the employee has tested positive for COVID-19, the employer can withdraw the job offer without violating the ADA.

Reasonable Accommodations for Non-Remote and Remote Employees

An employer may be obligated to provide reasonable accommodations to an employee with a preexisting condition who is at a higher risk from COVID-19 but cannot perform the essential functions of the position remotely.  An employer must be flexible in determining if an accommodation is possible under the particular circumstances.  An employer, in response to an employee’s request for reduced contact because of a disability, should determine whether it is feasible to temporary restructure the employee’s marginal job duties, temporary transfer the employee to a different position, or modify a work schedule or shift assignment to permit the employee to safely perform the essential functions of the job while reducing exposure to others in the workplace or while commuting.  In addition, the employer should also assess whether the following changes to the work environment are feasible: designation of one-way aisles; use of plexiglass, tables, or other barriers to ensure minimum distances between employee and customers and coworkers.

Further, an employer is obligated to engage in an interactive process with an employee who, prior to teleworking due to COVID-19, was already receiving a reasonable accommodation because he or she may be entitled to an additional or altered accommodation.  The employer may ask the employee whether the same or a different disability is the reason for the new request and why the newly requested accommodation is needed.

Businesses requiring additional guidance regarding the ADA and COVID-19 pandemic can contact Robert Brooks or Michael Chittick

About The Author

Adler Pollock & Sheehan P.C.

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