By: Brian R. CarnieChelsea G. CaswellA. Edward Hardin, Jr.Scott D. HuffstetlerErin L. KilgoreMichael D. LoweZoe W. Vermeulen, and David M. Whitaker

On Wednesday, March 18, 2020, the EEOC released updated guidance titled “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.” The release may be accessed here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm.

Along with some specific new guidance, the EEOC references its 2009 publication titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” which the EEOC published during the H1N1 outbreak. That publication is available here: https://www.eeoc.gov/facts/pandemic_flu.html. The EEOC specifically recognized the 2009 publication’s continued relevancy today.

The EEOC’s updated guidance also specifically recognizes that although the ADA and Rehabilitation Act rules continue to apply, they “do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”  The EEOC emphasized that guidance from public health authorities is likely to change as the pandemic evolves and reminded employers to follow the most current information available on maintaining workplace safety. The EEOC’s pronouncements are generally based on CDC guidance opining that an individual with COVID-19 or its associated symptoms cannot safely enter the workplace.

The following are highlights of the EEOC’s updated guidance:

  • During a pandemic, covered employers may ask employees if they are experiencing symptoms of the pandemic virus, but must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
  • Based on the CDC’s current precautions, employers may measure an employee’s body temperature. An employer may also take an applicant’s body temperature after making a conditional job offer. The EEOC acknowledges, however, that some people with the virus do not have a fever.
  • Employers may require employees to stay home if they have symptoms of COVID-19. With respect to applicants: (1) employers may delay the start date of an applicant who has COVID-19 or symptoms associated with the virus; and (2) employers may even withdraw a job offer of an applicant who has COVID-19 or associated symptoms when the employer needs the applicant to start immediately.
  • The ADA permits employers to require a doctor’s note certifying an employee’s fitness for duty when returning to work. The EEOC opines that such note “would not be disability-related” or, if the pandemic were truly severe, the requirement “would be justified under the ADA standards for disability-related inquiries of employees.”

If you have questions, please contact Kean Miller labor and employment attorneys, Brian R. Carnie (318.562.2652), Chelsea G. Caswell (225.382.3405), A. Edward Hardin, Jr. (225.382.3458), Scott D. Huffstetler (225.389.3747), Erin L. Kilgore (225.389.3712), Michael D. Lowe (318.562.2653), Zoe W. Vermeulen (504.620.3367), and David M. Whitaker (504.620.3358).