As the COVID-19 pandemic evolves, the advice and guidance from public health authorities and government continues to change.
Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, the U.S. Equal Employment Opportunity Commission (EEOC) pandemic guidance has temporarily modified its position on taking the temperatures of employees. The Q&A below answers common employer questions about what to do after a pandemic has been declared:
Q: When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
A: Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperatures. However, employers should be aware that some people with COVID-19 do not have a fever.
Q: May an employer take an applicant's temperature as part of a post-offer, preemployment medical exam?
A: Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.
Q: 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?
A: 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.
Q: Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
A: 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.
Q: When an employee returns to work, does the ADA allow the employer to require a note from a doctor certifying the employee’s fitness for duty?
A: Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic outbreak 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.
Q: If an employer is hiring, may it screen applicants for symptoms of COVID-19?
A: Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
Q: May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
A: Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
Q: May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
A: Based on current CDC guidance, this individual cannot safely enter the workplace and, therefore, the employer may withdraw the job offer.