As we await the fate in the Senate of the revised proposed Families First Coronavirus Response Act legislation, it’s important to remember other employment considerations under the unique circumstances of a pandemic. While the protections and requirements of the ADA and FMLA regarding reasonable accommodation (as well as rules about medical examinations and inquiries) remain intact, they do not interfere with or prevent employers from following the specific guidelines and suggestions made by the CDC (and/or state/local public health authorities) about steps employers should take regarding COVID-19. Let’s consider the EEOC’s guidance regarding some of the most frequently-asked questions by employers on this subject:
1. With regard to protecting/informing a workforce concerning potential exposure via a coworker, what information may I request from an employee who calls in sick? During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus; in the case of COVID-19, such symptoms include fever, chills, cough, shortness of breath, and/or sore throat. However, employers must maintain all information obtained through such an inquiry as a confidential medical record, in compliance with the ADA, and thus not disclose the identity of the affected coworker.
2. May I take an employee’s body temperature? Although measuring an employee’s body temperature is generally considered a medical examination (and thus usually beyond the bounds of what an employer can do or require), because the CDC and state/local health authorities have acknowledged the direct threat of community spread of COVID-19 and issued attendant precautions allowing it, employers may measure employees’ body temperature as an allowable inquiry concerning possible presence of the virus. However, it is important to remember that not all individuals with COVID-19 exhibit a fever, and not all individuals who exhibit a fever have COVID-19.
3. May I require employees with symptoms of COVID-19 to stay out of the workplace? The CDC guidance expressly states that employees who become ill with symptoms of COVID-19 should leave the workplace. The caution here is for employers to apply such a policy evenly, across the board, and not in a way that could be deemed discriminatory.
4. When an employee returns to work after being out for a COVID-19 related absence, may I require fitness-for-duty certification from a physician? Such inquiries are permitted as, under the circumstances of the COVID-19 pandemic, they would not be disability-related and/or would be justified under the ADA standards for disability-related inquiries of employees, based upon the assessments by the CDC and public health authorities of the pandemic’s severity and its posing of direct threat; as in the case of permitting the taking of employees’ body temperature, such assessments provide the objective evidence needed for a disability-related inquiry or medical examination.