EEOC Issues COVID-19-Specific Pandemic Preparedness Guidelines
On March 21, 2020, the EEOC formally stated that its Pandemic Preparedness Guidelines (previously applicable to influenza only) (the “Guidelines”) are also applicable to COVID-19, and published its updated Guidelines with specific reference to COVID-19. The EEOC made clear that COVID-19 now poses a “direct threat”—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—under the Americans with Disabilities Act (“ADA”), which allows employers to implement the following measures during the pandemic. This blog is an overview of the Guidelines and is not intended to be comprehensive and should not be considered legal advice.
Guidelines concerning employees covered by the ADA during the pandemic:
- An employee who exhibits any symptoms of COVID-19 may be immediately sent home.
- If an employee reports being ill, the employer may ask if he or she is experiencing COVID-19 symptoms, including whether the employee has a fever, chills, cough, shortness of breath, or sore throat. These inquiries will not be considered disability-related during the pandemic. Employers must keep confidential records of the employee’s illness in keeping with the employee’s HIPAA rights.
- Employers may take employees’ temperatures during the pandemic without violating the ADA. All results must be confidentially maintained in accordance with HIPAA.
- Employers may make risk assessment determinations in accordance with the Center for Disease Control’s recommendations prior to allowing individuals who have traveled to high-risk locations from returning to work without violating the ADA, even if the employee is asymptomatic.
- Employers may encourage all employees to tele-work.
- Employers may require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, and may require employees to wear personal protective equipment (such as gloves and gowns) and must provide the equipment absent undue hardship.
- Employers may ask employees why they did not report to work.
- Employers may not ask employees who do not have COVID-19 symptoms to disclose whether they have a medical condition identified by the CDC (or otherwise) that renders them particularly vulnerable to COVID-19 complications.
ADA Compliance
During the pandemic, employers are still required to otherwise abide by the ADA’s mandates, including providing reasonable accommodations. The EEOC notes: “The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.”
Hiring during the pandemic
The EEOC provides that employers may screen potential applicants for COVID-19 per the above guidelines only after a conditional offer of employment has been extended, including taking the potential employee’s temperature. If a potential employee has symptoms of COVID-19 during the pandemic, an employer is authorized to delay the start of employment or rescind the job offer without violating the ADA.
Conclusion
The EEOC’s Guidelines outlined in this blog are applicable only during the COVID-19 pandemic. Different guidelines apply after the pandemic ends, and employers should be particularly cognizant of this in order to remain compliant with the ADA. Employers and employees should consult a lawyer to discuss their legal rights during and after the COVID-19 pandemic.
Davis & Ceriani’s COVID-19 Employment Law Team:
Valeri Pappas, Managing Partner
vpappas@davisandceriani.com
Jennifer Tiedeken, Special Counsel
jtiedeken@davisandceriani.com