EEOC Guidance for Employers During the COVID-19 Pandemic
The Equal Employment Opportunity Commission (“EEOC”) has provided guidance that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. The guidance identifies established Americans with Disabilities Act (“ADA”) and Rehabilitation Act principles to answer questions frequently asked about the workplace after a pandemic has been declared, such as the present situation with COVID-19.
The ADA applies to employers of 15 or more employees and all government employers. The Rehabilitation Act applies to government programs and services. However, ADA principles apply generally to smaller Ohio employers (those that employ 4 or more employees) by virtue of R.C. Chapter 4112.
Applying these principles to the COVID-19 pandemic, the following may be helpful:
1. 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.
2. 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 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.
3. 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.
4. 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 an employer is hiring, may it screen applicants for symptoms of COVID-19?
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.
6. May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
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.
7. May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
8. 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?
Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
FAQ Concerning Febrile Employees
To help our clients address COVID-19 issues we have developed this FAQ concerning febrile employees. Each situation is different and this is not intended as legal advice for your precise circumstance. Please contact us for specific advice and questions.
1. Now that the EEOC has stated that employers can take the temperatures of employees and Governor DeWine has strongly advised that employers do so daily, what constitutes a febrile employee?
Dr. Amy Acton, MD, MPH, Director of the Ohio Department of Health, advises that a temperature of 100 degrees or greater constitutes a fever for purposes of screening employees for public health purposes related to COVID-19.
2. What do we do with an employee who reports for work with a fever or other symptoms?
Send them home. Other symptoms of COVID-19 infection include shortness of breath, joint pain and sore throat. The State of Ohio’s view is that a person with a combination of these symptom is sick and poses a risk to the health and safety of other employees and others. The Employer can elect to send the employee home and charge the employee’s sick leave balance, or place the employee on paid administrative leave, or leave without pay if the employee has no sick leave available.
3. What do we do if an employee refuses to let us take their temperature?
Send them home. In our view this constitutes insubordination because the employee has disobeyed a lawful order. The Employer may take appropriate disciplinary action according to its policies or any applicable collective bargaining agreement.
4. How long must a febrile employee remain away from work?
At least 24 hours after the fever subsides according to the CDC. https://www.cdc.gov/flu/business/stay-home-when-sick.htm. However, Dr. Acton is currently recommending at least 72 hours.
Please remember this is general guidance and not specific legal advice. Please contact legal counsel for advice on specific circumstances.
Information courtesy of Haynes Kessler Myers & Postalakis, Incorporated, of counsel with Thomas Law Group.