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Clark & Walker, P.C. - Attorneys at Law
Date: March 25, 2020

COVID-19: Compliance with Non-Discrimination Laws
By: Judy Drickey-Prohow

Dear Client(s):

While most of the recent attention involving the current pandemic turns on pay, benefits and prevention, the Equal Employment Opportunity Commission ("EEOC") has now issued new guidance intended to clarify an employer's rights and responsibilities under the Americans with Disabilities Act ("ADA") and the Federal Rehabilitation Act ("Rehabilitation Act").

The ADA and the Rehabilitation Act both prohibit discrimination against employees and applicants for employment based on the individual’s disability. Under those laws employers are limited in the kind and amount of information they can request about an individual's medical situation or disability.

Both laws contain an exemption for situations where an individual’s health condition creates a "direct threat," defined as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation." In the limited situations where the person poses a direct threat. Persons who pose a “direct threat” are not protected by the non-discrimination provisions of the ADA or the Rehabilitation Act.

Based on the recent guidance provided by the Centers for Disease Control and public health authorities, EEOC has concluded that the COVID-19 pandemic currently meets the “direct threat” standard of both laws, and that those guidance(s) "manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at this time." As a result EEOC has concluded that until public health officials determine otherwise, the following standards apply:

1. Are there ADA-compliant ways for employers to identify which employees are more likely to be unavailable for work in the event of a pandemic?

Response: Yes, an employer may make inquiries that are not disability-related. An inquiry is not disability-related if it is designed to identify potential non-medical reasons for absence during a pandemic; however, that inquiry should be structured so that the employee can respond yes or no without specifying the factor(s) that apply to him/her.

For example, an employer may ask employees to answer yes or no to the following survey:

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:
- If schools or day-care centers were closed, you would need to care for a child;
- If other services were not available, you would need to care for other dependents;
- If public transport is sporadic or unavailable you would be unable to travel to work; and/or
- if you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic virus, you would be advised by public health authorities not to come to work: person with compromised immune systems due to HIV, cancer, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65 years old.

2. May an employer rescind a job offer made to an applicant based on the results of a post-offer medical examination if it reveals that the applicant has a medical condition that puts him/her at increased risk of complications from influenza?

Response: No, unless the applicant would pose a direct threat, based on an individualized assessment of the person and reasonable medical judgment that relies on the most current medical knowledge and/or best available information from the CDC or state or local health authorities.

3. May an employer send employees home if they display influenza-like symptoms during a pandemic?

Response: Yes, an employer can send home an employee with COVID-19 or symptoms associated with it.

4. How much information may an employer request from employees who report feeling ill at work or who call in sick?

Response: Employers may ask employees who report feeling ill at work or who call in sick questions about their symptoms to determine if they have or may have COVID-19. Currently these symptoms include, for example, fever, chills, shortness of breath or sore throat.

5. During a pandemic may an employer take its employees’ temperatures to determine whether they have a fever?

Response: Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, employers may measure employee’s body temperature. As with all medical information the fact that an employee has a fever or other symptoms will be subject to ADA confidentiality requirements.

6. When an employee returns from travel must an employer wait until the employee develops symptoms to ask questions about exposure to pandemic influenzas.

Response: No, these are not disability-related inquires and are therefore permissible. Employers may follow the advice of the CDC and state/local health authorities regarding information needed to permit an employee’s return to work after visiting a specified location, whether for business or personal reasons.

7. Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? Response: 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.

8. When employees return to work, does the ADA allow employers to require doctors' notes certifying their fitness for duty? Response: 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.

9. If an employer is hiring, may it screen applicants for symptoms of COVID-19? Response: 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.

10. May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam? Response: 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.

11. May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? Response: Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

12. 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?

Response: Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

EEOC will publicly post an online webinar addressing these and other similar questions on Friday afternoon, March 27, 2020. The Law Offices of Scott Clark will provide updates and changes to the federal guidance as it becomes available,. The EEOC is asking persons with additional questions to submit them by email to 9 PM eastern time on March 25, 2020.

Any person who has questions about a proper protocol or who needs additional assistance is strongly encouraged to contact legal counsel at any time.

If you have questions about this information, please consult with an attorney

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