The federal agency that enforces the Americans with Disabilities Act has offered updated guidance to address the COVID-19 crisis.
If an employee calls in sick during the pandemic, the Equal Employment Opportunity Commission says the employer may ask the employee if he or she is experiencing symptoms of the pandemic virus including symptoms of fever, chills, cough, shortness of breath or sore throat.
While many employees will want to know the identity of anyone who is positive for the virus, the EEOC states that employers may not disclose this information to other employees and must maintain all confidential information about an employee’s illness as a confidential medical record, as it would any illness.
Of course, employers would be permitted to work with local health department officials to identify the individual and seek guidance on how best to address safety in the workplace.
For purposes of stopping the spread, the EEOC says that it is permissible for a staffing agency to notify an employer of the identity of its employee if the staffing agency’s employee becomes ill with symptoms or tests positive for the virus because the employer will need to determine with whom the individual had contact.
In customary times, an employer would not be permitted to take the body temperature of an employee, but these aren’t customary times.
Because the Centers for Disease Control and Prevention and health authorities have acknowledged community spread of the disease, the EEOC said “employers may measure employees’ body temperatures” keeping in mind that not all carriers are symptomatic.
An employer can 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.
If an employee shows symptoms of the virus, the employer can delay the start date or withdraw the job offer. If this occurs, the individual will not have been an employee of the company and doesn’t qualify for unemployment benefits.
However, employers should not deny employment to a person merely because the employer believes he/she has a higher risk of complications from the virus (such as a person who is pregnant or is older than 65).
“The fact that the CDC has identified those who are 65 or older or pregnant women as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer,” the EEOC stated. “However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.”
Employers can require that employees who become ill with symptoms be sent home.
Upon returning to work, that same employee can be required to provide a doctor’s note certifying fitness for duty.
“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,” the EEOC said. “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.”
All medical information related to the employee with symptoms or who might be positive for the virus should be stored separately from the employee’s personnel file, as should all medical records all the time.
Employers may have workers whose existing disability places them at greater risk from COVID-19.
The EEOC suggests finding ways to accommodate these individuals and to be flexible, including temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment to permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.