In a welcome development for U.S. employers, the U.S. Equal Employment Opportunity Commission (EEOC) has issued an updated announcement and updated guidance for employers about what they can and cannot ask their employees as they seek to protect their workforces against COVID-19. These updates provide valuable clarity to employers about the EEOC’s position on the types of health-related inquiries that an employer can make in light of the “direct threat” posed by COVID-19, without running afoul of the restrictions typically imposed by the Americans with Disabilities Act (ADA). Below, we highlight key clarifications that the updated EEOC guidance provides to employers about how they can screen current employees for COVID-19:
1) Can an employer take employees’ temperatures during the COVID-19 pandemic?
Yes, but treat the information as confidential medical records. The ADA restricts an employer’s ability to take employees’ temperatures, but the EEOC’s updated guidance clarifies that the COVID-19 pandemic now rises to the level of a “direct threat” that allows employers to take employees’ temperatures as a screening measure during this pandemic.
When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
Generally, measuring an employee’s body temperature is a medical examination. Because the CDC [Centers for Disease Control] 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 EEOC cautions that the information collected from the temperature checks must be protected as a confidential medical record under the ADA, which restricts disclosure of such information.
2) Can an employer ask employees whether they are experiencing symptoms consistent with COVID-19?
Yes, but treat the information as confidential medical health records. The ADA typically limits what an employer can ask employees about medical conditions, but the EEOC’s updated guidance states that an employer can make certain inquiries if an employee calls in sick or reports feeling ill at work.
How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as 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’s guidance also suggests that an employer can make similar inquiries of employees who report feeling ill at work. Again, employers are required to treat such information as a confidential medical record under the ADA.
3) Can an employer require an employee with COVID-19 symptoms to stay home?
Yes, in fact the CDC says that you should do so. The EEOC’s new guidance provides that an employer can require an employee to stay home if the employee displays symptoms consistent with COVID-19.
Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
The EEOC notes that if an illness is sufficiently serious that it poses a “direct threat,” like COVID-19 at present, an employer may send an employee home without violating the ADA.
4) Can an employer require an employee returning from sick leave to provide a doctor’s note?
Yes, but be flexible. The EEOC’s guidance states that an employer can require an employee returning from sick leave to provide a doctor’s note verifying the employee’s fitness to return to work, although the EEOC encourages employers to be flexible in seeking such verifications in light of the burden on healthcare providers.
When employees return to work, does the ADA allow employers to require doctors' notes certifying their fitness for duty?
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As 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.
5) If a COVID-19 vaccine is developed, can employers require their employees to take the vaccine?
No, if the employee requires accommodation for a disability or sincere religious belief. According to the EEOC, employers cannot implement an across-the-board requirement for employees to get a COVID-19 vaccine, if/when a vaccine is developed and available.
May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him [or her] from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him [or her] from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost" to the operation of the employer’s business, which is a lower standard than under the ADA).
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it. As of the date this document is being issued, there is no vaccine available for COVID- 19.
In other words, the EEOC advises that employers may consider encouraging employees to receive an influenza vaccine, but that the ADA and Title VII of the Civil Rights Act will restrict employers from requiring all employees to receive a vaccine, even if/when one is available.
The EEOC has underscored that this guidance is contingent on the current state of affairs and that the range of permissible inquiries by employers may expand or contract based on recommendations from the CDC and other public health officials. Although this guidance is not static, it provides valuable information to U.S. employers as they seek to protect their workplaces from COVID-19, particularly when they operate essential activities that require employees to continue reporting to the workplace.