Employer’s Guide to ADA and CDC Guidance During COVID-19 Outbreak
Employers are finding themselves in an increasingly difficult position as they continue to juggle compliance with the Americans with Disabilities Act (ADA) while adhering to the Centers for Disease Control and Prevention (CDC) and local health authorities during the COVID-19 outbreak. On March 11, 2020, the Coronavirus (COVID-19) was declared a pandemic. Being officially labeled as a pandemic means that employers can take certain measures to help contain the spread and are granted more leeway than they normally would be allowed.
The EEOC recently released a 45-minute long webinar covering the top questions they have received. It can be viewed here. You can also view the EEOC’s Pandemic Preparedness Resource Guide here.
We have summarized the top questions as well as provided additional resources below.
As more employees return to physical workplaces, the EEOC is continuing to update their guidance as it relates to COVID-19, the ADA, the Rehabilitation Act, and other Employment Laws. Employers are strongly encouraged to familiarize themselves with the most up to date information. See below for the latest questions and answers as of June 15, 2020.
Click a question to skip to the answers you need.
- How much information can I request from an employee who calls in sick during the COVID-19 pandemic?
- When may an ADA-covered employer take an employee’s temperature during the COVID19 pandemic?
- Does the ADA permit employers to instruct employees to stay home if they have symptoms of COVID-19?
- If an employer is hiring, may they screen applicants for symptoms of COVID-19?
- 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?
- Other than taking an employee’s temperature, what other measures can employers take to determine if employees who are physically coming into the workplace have COVID-19 or symptoms associated with it?
- Can an employer ask employees about COVID-19 and symptoms if the employee is teleworking or working remotely?
- What recourse does an employer have if an employee refuses to allow the employer to take their temperature or refuses to answer the employer’s questions about if they have COVID-19, symptoms of COVID-19, or if they’ve been tested for COVID-19?
- Can an employer single out just one employee to ask about COVID-19 or take just one employee’s temperature?
- Can an employer ask an employee if they have family members with COVID-19 or symptoms of the disease?
- Can employers bar older employees from the workplace since they are at a higher risk should they become infected with COVID-19?
- Are employers required to grant a request to telework from an employee who is 60 or older because they are at higher risk?
- Is COVID-19 considered a Disability under the ADA?
- What are an employer’s ADA obligations when an employee says they have a disability that puts them at greater risk of severe illness if they contract COVID-19, and the employee, therefore, asks for a reasonable accommodation?
- Does the employer have any responsibilities under the ADA if an employee says that they live in the same household as someone who, due to a disability, is at greater risk of severe illness from COVID-19?
New Guidance as of June 15, 2020
- Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness form COVID-19 due to an underlying medical condition?
- How may employers response to pandemic-related harassment, particularly against employees who are or are perceived to be Asian?
- What actions should an employer take if they learn that an employee who is teleworking due to COVID-19 is sending harassing emails to another worker?
- In advance of having some or all of the employees return to the workplace, are there ways for an employer to allow employees to request flexibility in work arrangements?
- What can an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?
- Due to the pandemic, may an employer exclude an employer from the workplace involuntarily due to pregnancy?
- Do the ADA and Rehabilitation Act apply to employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC?
Frequently Asked Questions — What Employers Can and Can’t Ask Under the ADA
How much information can I request from an employee who calls in sick during the COVID-19 pandemic?
“During a pandemic, ADA-covered employers are allowed to ask such employees if they are experiencing symptoms of COVID-19 including suffering from a fever, chills, cough, shortness of breath, or a sore throat. However, the employers must maintain all the information in a confidential medical record that is in compliance with the ADA.”
When may an ADA-covered employer take an employee’s temperature during the COVID-19 pandemic?
Because community spread is a CDC-recognized risk, employers take an employee’s temperature. It stands as a reminder, though, that not everyone with COVID-19 will have a fever or other symptoms.
Does the ADA permit employers to instruct employees to stay home if they have symptoms of COVID-19?
According to the CDC, symptomatic employees should leave and stay home. The ADA is not interfering with this advice.
If an employer is hiring, may they screen applicants for symptoms of COVID-19?
As long as the employer does so for all employees in the same job type, the employer may screen for COVID-19 symptoms after presenting a conditional offer. This rule applies regardless of the presence of a disability.
May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms?
In accordance with CDC guidelines, the employer may withdraw the job offer if the individual cannot enter the workplace safely.
Other than taking an employee’s temperature, what other measures can employers take to determine if employees who are physically coming into the workplace have COVID-19 or symptoms associated with it?
Employers can ask employees directly if they have COVID-19, symptoms of COVID-19, or if they have been tested for COVID-19. Employers may then exclude those employees who have COVID-19 or exhibit symptoms of the disease, from entering the workforce.
Can an employer ask employees about COVID-19 and symptoms if the employee is teleworking or working remotely?
No, the employer can only ask these questions of employees who are physically entering the workplace as a means of providing a safe working environment. If the employee is working remotely you would not be permitted to ask such questions.
What recourse does an employer have if an employee refuses to allow the employer to take their temperature or refuses to answer the employer’s questions about if they have COVID-19, symptoms, or if they’ve been tested?
Employers are allowed to bar an employee form being physically present in the workplace if the employee refuses to answer these questions.
Can an employer single out just one employee to ask about COVID-19 or take just one employee’s temperature?
Employers should tread carefully when taking this approach and should clearly document their rationale. The ADA mandates that the employer have a reasonable belief based on objective evidence that this particular employee has the disease if the employer singles out and employee.
Can an employer ask an employee if they have family members with COVID-19 or symptoms of the disease?
It’s best not to ask this question as it could mean running afoul of the Genetic Information Nondiscrimination Act (GINA). A better question to ask your employee is whether or not they have had contact with anyone who the employee knows has been diagnosed with COVID-19 or who was exhibiting symptoms of the disease.
Can employers bar older employees from the workplace since they are at a higher risk should they become infected with COVID-19?
No, this would be a form of age discrimination.
Are employers required to grant a request to telework from an employee who is 60 or older because they are at higher risk?
No, you are not required to grant the request. However, if the employee has an underlying disability that could be a factor then you should consider it as a reasonable accommodation under the ADA, but age is not a covered condition in and of itself.
Is COVID-19 considered a Disability under the ADA?
As of right now, it is not. However, it is an ever-evolving situation and there is much we do not yet know about the virus. The EEOC says that it is unclear at this time whether COVID-19 is, or could be, a disability under the ADA.
What are and employer’s ADA obligations when an employee says they have a disability that puts them at greater risk of severe illness if they contract COVID-19, and the employee, therefore, asks for a reasonable accommodation?
The CDC has identified numerous medical conditions that would put an individual at higher risk. That means that if an employee has one of these underlying conditions they are making a valid request for reasonable accommodation—meaning a change in the workplace or how they work. The employer should follow the normal ADA interactive process to adjudicate the request. That means that the employer can verify the existence of the disability and verify that reasonable accommodation is necessary. Employers can also consider if any specific form of accommodation would pose undue hardship to the business.
Does the employer have any responsibilities under the ADA if an employee says that they live in the same household as someone who, due to a disability, is at greater risk of severe illness from COVID-19?
The employer does not have any requirements to provide any accommodation under the ADA in this situation. Only the employee has a right to reasonable accommodation for their own disability, not for someone else’s.
New Guidance as of June 15, 2020
Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness form COVID-19 due to an underlying medical condition?
This is a common question and the EEOC has been consistent in its answer – No. The ADA only prohibits discrimination based on a disability that the employee has, it does not protect relatives of the employees. The EEOC notes that employers may feel free to be more generous than the law requires and choose to offer flexibility, however, if an employer chooses to do so they need to be careful not to engage in disparate treatment on a protected EEOC basis.
How may employers response to pandemic-related harassment, particularly against employees who are or are perceived to be Asian?
All employers covered by Title VII should ensure that management understands how to recognize signs of such harassment. Managers should be well acquainted with their legal obligations to quickly identify and resolve potential problems before they devolve into a level of unlawful discrimination. Employers may choose to send a reminder to their employees noting that Title VII prohibits harassment and that such actions will not be tolerated and may be met with disciplinary action.
What actions should an employer take if they learn that an employee who is teleworking due to COVID-19 is sending harassing emails to another worker?
Employers should take the same actions that they would had the harassment been taking place in the physical workplace.
In advance of having some or all of the employees return to the workplace, are there ways for an employer to allow employees to request flexibility in work arrangements?
The ADA and Rehabilitation Act allow employers to make information available in advance to all employees regarding who to contact, if they wish, to request accommodation for a disability that they may need upon returning to the physical workspace, even if no official date has been announced for their return. Employers are allowed to engage in the interactive processes even if the requests are received in advance. Employers can also choose to send a general notice to all employees letting them know that the employer is willing to consider individual requests from employees who have a need for reasonable accommodation due to a disability. Employers should be sure to include instructions for employees to follow in order to make such requests.
What can an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?
This could be considered a request for reasonable accommodation and therefore the employer should treat it as they would any other request for accommodation under the ADA or Rehabilitation Act and follow the interactive process including determine if the accommodation can be provided absent an undue hardship. Additionally, if an employee is requesting an alternative method of screening as a religious accommodation, the employer should determine if the accommodation is available under Title VII.
Due to the pandemic, may an employer exclude an employer from the workplace involuntarily due to pregnancy?
No. This is considered sex discrimination under Title VII of the Civil Rights Act.
Do the ADA and Rehabilitation Act apply to employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC?
Yes. These CDC designations do not negate the employer’s responsibilities to the employees under the ADA, the Rehabilitation Act, or any other equal employment opportunity law.
