Equal Employment Opportunity Commission Latest Agency to Release Bulletin on COVID-19

Yesterday, the Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination law, released a bulletin touching on COVID-19.  This bulletin, titled “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19,” largely refers to the EEOC’s prior Guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, issued during the H1N1 outbreak in 2009, reinforcing that the Pandemic Guidance remains useful for employers in responding to the current Coronavirus pandemic.

The bulletin directly sets forth the Agency’s view of permitted employer action when faced with some very common questions.  Among them:

• 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.
   
• 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.  However, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, ADA-covered employers may measure employees' body temperature, being mindful that some people with COVID-19 do not have a fever.
   
• Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?  Yes. The ADA allows employers to follow the CDC’s advice that employees who become ill with symptoms of COVID-19 while at work should be sent home, and that those who show symptoms should stay at home and not come to work.
   
• When employees return to work, does the ADA allow employers to require doctors' notes certifying their fitness for duty?  Yes, and ADA-covered employers can consider simpler authorizations during this pandemic, such as a stamp or email, to validly confirm the employee does not have the virus.  Fitness-for-duty inquiries following a COVID-19 diagnosis are generally permitted under the ADA because they are not disability-related, and may be justified in any case under ADA regulations which permit employers to make such inquiries of employees in certain circumstances.

The EEOC is the latest Agency to release some guidance or bulletin on how COVID-19 impacts the application of federal employment laws, following the various forms of guidance we have very recently seen from the Department of Labor pertaining to the Occupational Health and Safety Act (“Guidance on Preparing Workplaces for COVID-19”), the Fair Labor Standards Act (“COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers”), and the Family Medical Leave Act (“COVID-19 or Other Public Health Emergencies and the Family and Medical Leave Act Questions and Answers”).

Our extensive labor and employment team at Clark Hill PLC continues to stay on top of all pertinent developments pertaining to COVID-19, and will issue further Alerts on the subject as circumstances continue to unfold – including as the Families First Coronavirus Response Act being finalized by Congress becomes law in the coming days, as expected.  If you missed our recent webinar, “The Coronavirus: Helping Employers Through New and Developing Workplace Issues,” a link to hear it on-demand can be found here. 

Please feel free to contact the author or any member of our group for assistance with your labor, employment, workforce, staffing and other business needs related to COVID-19.