The Equal Employment Opportunity Commission has now directly addressed the coronavirus (COVID-19) outbreak by issuing “What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus.” In this release, the EEOC noted that the rules under the Americans with Disabilities Act and the Rehabilitation Act (the counterpart to the ADA for federal employees and contractors) still apply, but do not interfere with workplace guidance from the Centers for Disease Control (CDC) (which we discussed in detail in our February 2020 Top Tip).

The EEOC also refers to prior guidance that it issued back in 2009 during the H1N1 flu pandemic. That guidance explained that, under the ADA, an employer may make medical inquiries or require medical examinations only where such inquiries are job related and consistent with business necessity, which occurs when an employee poses a direct threat to the health or safety to themselves or others. Whether a pandemic illness constitutes a direct threat depends on its severity – a typical seasonal flu or even the 2009 H1N1 outbreak is/was not sufficiently severe to pose a direct threat and justify medical inquiries and examinations. The guidance noted that the CDC and public health authorities will determine the severity of any illness.

In particular, the EEOC stated that the following frequently asked questions that arise in the current context of COVID-19 are addressed by the 2009 guidance:

• How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during a Coronavirus-like event?

Regardless of the severity of an outbreak, the guidance states that employers may ask if employees are experiencing symptoms of the illness in question (i.e. COVID-19). Any information received about employee illnesses must be maintained confidentially. Another part of the guidance provides that employers may ask employees who call out the reason for the absence. (Then, of course, if the employee states it is because they are sick, they may be asked if they have COVID-19 symptoms.)

• When may an ADA-covered employer take the body temperature of employees during a Coronavirus-like event?

The guidance considers this a medical examination, which would only be permitted when the outbreak becomes sufficiently severe or widespread, as assessed by the CDC or public health officials. Note, however, that not all individuals with COVID-19 have a fever.

• Does the ADA allow employers to require employees to stay home if they have symptoms of the Coronavirus?

According to the guidance, if the employee is exhibiting signs of the pandemic illness, they may be sent home or required to stay home.

• When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?

Yes. The guidance notes that “[a]s a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, 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.” This is in line with the CDC’s guidance, which encourages employers not to require a doctor’s note, “as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.”