By Gerald L. Maatman, Jr. and Matthew Gagnon

Seyfarth Synopsis: In the past 24 hours, the EEOC released a statement: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, which gives employers some guidance on how they can navigate the safety concerns associated with COVID-19 while staying in compliance with the federal disability discrimination laws. The EEOC was careful to explain that although those laws are still very much in effect, they do not interfere or prevent employers from following the guidelines or suggestions made by the CDC or state and local public health authorities regarding COVID-19. The Commission’s statement is a must read for corporate counsel.

The EEOC’s statement builds on its earlier guidance, issued during the H1N1 pandemic, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act. That publication, which is far more in depth than what was just released, provides important guidance for employers trying to navigate the disability discrimination laws during a pandemic, including: how much and what kinds of information an employer may request from an employee who calls in sick, when employers may take the temperature of employees, when the ADA allows employers to require employees to stay home from work, and what employers can require in terms of doctors’ notes or other certifications of fitness for duty.

Those issues are also addressed briefly in the EEOC’s recent statement. These are the key points that the EEOC wants all employers to keep in mind:

  • During a pandemic, employers may ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include 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.
  • The EEOC reminded employers that measuring an employee’s body temperature is a medical examination. But 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.
  • The CDC has stated that employees who become ill with symptoms of COVID-19 should leave the workplace. The EEOC wants employers to know that the ADA does not and should not interfere with that advice.
  • The ADA allows employers to require doctors’ notes certifying fitness for duty because such notes would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA’s standards for disability-related inquiries of employees. The EEOC also acknowledges that doctors and other health care professionals may be too busy to provide such documentation and that new approaches may be necessary, such as a form, a stamp, or an email to certify that an individual does not have the pandemic virus.

Implications For Employers

This is an incredibly fast-moving situation and no single set of guidelines can possibly cover all of the diverse situations that employers are likely to face with unprecedented urgency over the next days, weeks, and months. But the new guidelines issued today, and especially the more detailed document that was issued in 2009, are a good place to start for employers who are looking for quick, practical guidance as they start crafting and implementing critical workplace policies on the fly.

We encourage all employers to review Seyfarth Shaw’s COVID-19 Resource Center for additional guidance and information. The Resource Center was designed to provide employers up-to-the-minute guidance on the diverse and growing list of legal considerations and risks employers are facing. Seyfarth Shaw also has a response team standing by to assist however we can.

Readers can also find this post on our Workplace Class Action blog here.