As the current coronavirus (COVID-19) emergency continues to wage on, the U.S. Equal Employment Opportunity Commission (EEOC) has issued an update to its guidance regarding handling pandemics within Title I and Title V of the Americans with Disabilities Act (ADA). The guidance was initially issued in 2009 for the H1N1 influenza pandemic, but the updates focus on COVID-19 and the responses of employers under the ADA.

COVID-19: A Direct Threat to the Workspace Under the ADA

On March 21, 2020, the EEOC deemed COVID-19 a “direct threat” and anyone who has it (or exhibits symptoms) is a “substantial risk” to the work environment. The ADA generally allows for the exclusion of employees or job applicants presenting a direct threat to the health and/or safety of other employees. As a result, employers can use discretion when it comes to handling employees and job applicants that either have COVID-19 or are exhibiting symptoms.

However, when employers use discretion, there can be ambiguity. It’s important to know that there may be legal ramifications if improperly discriminating against employees, so it’s best for employers to obtain a legal opinion in order to stay compliant with federal regulations.

To help with any immediate uncertainty, the EEOC has addressed the following topics pertaining to ADA-covered employers.

Requesting Information from Employees Calling in Sick

Employers may ask about the employee’s symptoms and conclude if they’re consistent with the COVID-19 pandemic. Common symptoms include fever, shortness of breath, cough and more. Employers must maintain confidentiality with employees’ medical records in order to remain ADA-compliant. Read a full list of COVID-19 symptoms here.

Measuring the Body Temperature of Employees

While this is typically prohibited by the ADA, it is accepted for employers to take the temperature of an employee during the COVID-19 pandemic due to the threat the virus poses to society. Again, confidentiality of medical records is required. If an employee refuses to have their temperature taken, ADA permits the employer to bar them from the workspace.

Implementing Required Infection-Control Practices

ADA-covered employers can require hand washing, and proper coughing and sneezing techniques without being implicated. Another infection-control practice that can be put into effect is the wearing of gloves and masks.

Sending Employees Home

If an employee is showing symptoms or has the COVID-19 virus, employers are permitted to send them home without being implicated by the ADA. The EEOC advises employers to have “work from home” measures in place for those who have been sent home, as well as those who feel as if they’re exhibiting symptoms.

Asking About Employees’ Recent Foreign Travel

While this is typically not acceptable, employers can inquire about an employee’s recent international travel, whether for business or leisure. The Centers for Disease Control and Prevention (CDC) advises individuals self-quarantine for a minimum of 14 days after traveling to specific countries during the pandemic. A list of countries that are a travel risk is available from the CDC here.

Adapting Hiring Processes in Response to the Pandemic

While the ADA typically prohibits medical inquiries and exams before a job offer, it’s acceptable for an employer to screen applicants for COVID-19 symptoms upon a conditional job offer. Body temperature may also be taken as a post-offer, pre-employment measure. If a new hire has COVID-19 or shows symptoms, their start date can be delayed or the job offer may be redacted without implication.

Employers should be prepared to take precautionary measures in order to protect their workplace and the safety of their employees. For more information, you can visit the EEOC’s website. DM Payroll Solutions recommends employers discuss these guidelines with legal counsel.