Update Guidance from the EEOC About COVID-19 and the ADA
By Kevin M. Mosher • Oct 2, 2020
As employers continue navigating the COVID-19 pandemic, new issues continue to present themselves. Employers must balance their obligations to maintain a safe workplace with their employees’ rights under the American with Disabilities Act, As Amended (ADA) and other applicable state and federal laws. Last month, the Equal Employment Opportunities Commission (EEOC) issued new guidance for how employers can implement measures to protect employees and guests in the workplace without infringing upon anyone’s ADA rights.
Can employers administer COVID-19 tests to their employees?
Under the ADA, employers may conduct mandatory medical testing so long as it is “job related and consistent with business necessity.” Considering the nature of the COVID-19 pandemic, employers may test or otherwise screen their employees, since anyone with a current infection poses a direct threat to others in the workplace. Most importantly, the EEOC clarified that the ADA does not interfere with employers following recommendations by the Center for Disease Control (CDC) or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. However, employers must ensure that the tests they administer are considered accurate and reliable, and any medical information about employees should be kept confidential.
Can employers ask questions about an employee’s health?
Employers can ask anyone physically entering the workplace if they have COVID-19, if they have symptoms of COVID-19, and/or if they have been tested for COVID-19. If an employee indicates that they have COVID-19 or are experiencing symptoms of COVID-19, an employer can restrict them from entering since their presence in the workplace would pose a direct threat to the health and safety of others. Employers may also ask individuals who work on site and report feeling ill about their symptoms, as well as employees who are absent from work due to illness.
Can employers ask a particular employee questions about their health?
An employer can single out a particular employee to undergo a health screening or test if the employer reasonably believes that the employee may be currently infected with COVID-19. This means if an employee is exhibiting symptoms of COVID-19, an employer can likely check their temperature, ask them questions about their health, or request they undergo testing, without violating the employees’ rights under the ADA.
Can employers ask questions about employees’ family members?
Employers may not ask employees for medical information about their family members under the Genetic Information Nondiscrimination Act (GINA). However, an employer may ask whether the employee has had recent exposure to anyone diagnosed with COVID-19 or experiencing COVID-19 symptoms. This is a better way to gather information about whether the employee may have contracted COVID-19, anyway.
Can employers inform other employees when an employee reports experiencing symptoms of COVID-19?
The ADA requires employers to keep all medical information confidential, even if the information is not about a disability. This means that an employee’s report of experiencing symptoms of COVID-19 is medical information that must be kept confidential. However, the ADA does not restrict the employer from communicating the medical information to other employer officials in order to take actions that are consistent with guidance from the CDC and other public health authorities. This communication should be limited to officials who necessarily need the information to take proper remedial action.
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