Coronavirus and the ADA – the EEOC Helps Out

by Marti Cardi, Esq. - Vice President, Product Compliance

March 04, 2020

 

 

While there are countless articles online providing advice to employers about how to deal with the Coronavirus (now called COVID-19), here’s something that’s actually helpful: The Equal Employment Opportunity Commission (EEOC) has directed our attention to a technical assistance document to help understand and cope with pandemics in the context of the ADA. As summarized in the new, coronavirus-specific  intro, the document answers questions such as:

  • How much information may an employer request from an employee
    who calls in sick, in order to protect the rest of its workforce during
    a Coronavirus-like event?
  • When may an ADA-covered employer take the body temperature
    of employees during a Coronavirus-like event?
  • Does the ADA allow employers to require employees to stay home if
    they have symptoms of the Coronavirus?
  • When employees return to work, does the ADA allow employers to
    require doctors’ notes certifying their fitness for duty?

Here is some of the information I found most helpful from the EEOC document. In order to be both expedient and accurate, I’m taking the content fairly directly from the document itself. However, employers should read the entire EEOC document, as there are many details that will assist in a variety of situations.

Why do we care about the ADA now? Is the Coronavirus a disability?

Probably not for most individuals who contract it, but that is always a case-by-case assessment under the usual ADA principles. The EEOC explains how the ADA is relevant to dealing with a pandemic:

  • The ADA regulates employers’ disability-related inquiries and medical examinations for all applicants and
    employees, including those who do not have ADA disabilities.
  • The ADA prohibits covered employers from excluding individuals with disabilities from the workplace for
    health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with
    reasonable accommodation).
  • The ADA still requires reasonable accommodations for individuals with disabilities (absent undue hardship) during
    a pandemic.

What medical inquiries can an employer make?

As a refresher, the ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances. An inquiry is “disability-related” if it is likely to elicit information about a disability.  For example, asking an individual if his immune system is compromised is a disability-related inquiry because it could be closely associated with conditions that are disabilities. On the other hand, asking an individual about symptoms of a cold or the seasonal flu is not a disability-related inquiry.

During employment, the ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when the employer has a reasonable belief, based on objective evidence, that:

  • An employee’s ability to perform essential job functions will be impaired by a medical condition; or
  • An employee will pose a direct threat due to a medical condition.

With that backdrop, let’s look at some of the helpful guidance.

Does someone diagnosed with or exposed to COVID-19 pose a direct threat?

A “direct threat” under the ADA is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Whether COVID-19 rises to the level of a direct threat depends on the severity of the illness. If the Centers for Disease Control (CDC) or state or local health authorities determine that COVID-19 is significantly severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information. You can check out the latest COVID-19 information from the CDC here.

What questions can an employer ask to assist with pandemic planning and preparedness?

There are ADA-compliant ways for an employer to identify which employees are more likely to be unavailable for work in the event of a pandemic. This may include questions about non-medical reasons that an employee may need to be absent during a pandemic such as curtailed public transportation, closure of children’s schools, or the need to care for other dependents if services become unavailable. The EEOC document has an ADA-compliant, pre-pandemic employee survey employers can use to assess the possible impact on its employees’ ability to attend work.

What steps can an employer take during a pandemic?

Here is some really helpful info from the EEOC (but please read the full document for details and exceptions!):

  • An employer may send employees home from work if they display symptoms of the disease. The
    employer can also encourage or require telework if that is feasible for the position.
  • If an employee reports feeling ill or calls in sick, the employer may ask the employee if they are
    experiencing symptoms common to the pandemic disease.
  • An employer may take an employee’s temperature to determine whether they have a fever IF
    the general nature of the illness becomes severe or the outbreak is widespread. (Otherwise, this
    may be an impermissible medical exam under the ADA, so be careful!)
  • When an employee returns from travel during a pandemic the employer does not need to wait until
    the employee develops symptoms to ask questions about the employee’s possible exposure during
    the trip.
  • During a pandemic, an employer may require its employees to adopt infection-control practices such
    as regular handwashing or wearing protective equipment (e.g., face masks, gloves, or gowns) designed
    to reduce transmission of the disease.
  • An employer may encourage, but may not require, its workforce to obtain a vaccine for the pandemic
    disease or any other condition.
  • During a pandemic, an employer must continue to provide reasonable accommodations to individuals
    with disabilities. This may be a continuation or modification of an existing accommodation, or a new
    accommodation necessary due to the pandemic (e.g., allowing an employee with a compromised immune
    system to work from home).
  • An employer may ask an employee who has been absent from work the reasons for the absence if the
    employer suspects it is for a medical reason.
  • And, an employer may require an employee who has been away from the workplace during the pandemic
    to provide a doctor’s note certifying fitness to return to work.

What is Matrix doing to be prepared?

At Matrix we are continually monitoring the COVID-19 outbreak.

We hope and expect the outbreak will not impact our ability to process claims. However, our Business Continuity team has been put on notice across all service locations and we will continue to monitor any potential threats to our workforce with heightened sensitivity and awareness. We have also issued special instructions to our operations teams regarding how to manage claims related to COVID-19 diagnoses, exposure, and quarantines. If you are a Matrix client, please contact your account manager with any questions or concerns. And please be patient, as the issue, along with measures to respond to it, is fluid and changing rapidly.