Last Updated: 3.5.2021 @ 10:55 am
DISCLAIMER: The following information is a guide, not intended to be used as legal advice, and no attorney client relationship is established by any communication through this website. Because every situation and every workplace is different we ask that you contact us with specific questions.
Employers should be aware that typically taking an employee’s temperature at work is considered a medical examination under the Americans with Disabilities Act (ADA). Absent an undue hardship, an employer may only conduct medical examination for current employees if it is job-related and consistent with business needs. However, according to the EEOC’s Pandemic Guidance, employers may measure employees’ body temperature if a pandemic influenza becomes widespread in the community and assessed by state or local health authorities or the CDC.
The ADA prohibits employers from making disability-related inquiries and requiring medical examinations unless they are job-related and consistent with business necessity. Employers further should not disclose the name or personal information of the employee who has tested positive for COVID-19.
Employers should also be aware that typically taking an employee’s temperature at work is considered a medical examination under the Americans with Disabilities Act (ADA).
- Absent an undue hardship, an employer may only conduct medical examination for current employees if it is job-related and consistent with business needs.
- However, according to the EEOC’s Pandemic Guidance, employers may measure employees’ body temperature if a pandemic influenza becomes widespread in the community and assessed by state or local health authorities or the CDC.
- The ADA prohibits employers from making disability-related inquiries and requiring medical examinations unless they are job-related and consistent with business necessity. Employers further should not disclose the name or personal information of the employee who has tested positive for COVID-19.
Q: May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace?
A: The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.
Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.
Q: During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?
A: 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, cough, shortness of breath, or sore throat.
Q: When may an ADA-covered employer take the body temperature of employees during a pandemic?
A: Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.
Q: When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?
A: employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.
- In Ohio, a 2 week quarantine is recommended/ordered for anyone returning from traveling
Q: During a pandemic, may an ADA-covered employer ask employees who do not have coronavirus symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to coronavirus complications?
- If an employee voluntarily discloses (without a disability-related inquiry) that he has a specific medical condition or disability that puts him or her at increased risk of coronavirus complications, the employer must keep this information confidential. The employer may ask him to describe the type of assistance he thinks will be needed (e.g. telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of coronavirus complications. Many disabilities do not increase this risk (e.g. vision or mobility disabilities).
- If a pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic coronavirus. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of coronavirus complications.
Q: Does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic influenza virus?
Q: What is a direct threat?
A: DIRECT THREAT AND PANDEMIC INFLUENZA, COVID-19, AND OTHER PUBLIC HEALTH EMERGENCIES
- Direct threat is an important ADA concept during an influenza pandemic. Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more 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.
- During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, 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.
- Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard. The CDC and public health authorities have acknowledged community spread of COVID-19 in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings. In addition, numerous state and local authorities have issued closure orders for businesses, entertainment and sport venues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion. These facts 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 the current time. At such time as the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists.
Q: During a pandemic, must an employer continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship?
- An employer’s ADA responsibilities to individuals with disabilities continue during an influenza pandemic. Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can it lawfully exclude him from employment or employment-related activities.
- If an employee with a disability needs the same reasonable accommodation at a telework site that he had at the workplace, the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should cooperate to identify an alternative reasonable accommodation.
- Example: An accountant with low vision has a screen-reader on her office computer as a reasonable accommodation. In preparation for telework during a pandemic or other emergency event, the employer issues notebook computers to all accountants. In accordance with the ADA, the employer provides the accountant with a notebook computer that has a screen-reader installed.
- All employees with disabilities whose responsibilities include management during a pandemic must receive reasonable accommodations necessitated by pandemic conditions, unless undue hardship is established.
- Example: A manager in a marketing firm has a hearing disability. A sign language interpreter facilitates her communication with other employees at the office during meetings and trainings. Before the pandemic, the employer decided to provide video phone equipment and video relay software for her at home to use for emergency business consultations. (Video relay services allow deaf and hearing impaired individuals to communicate by telephone through a sign language interpreter by placing a video relay call.(37)) During an influenza pandemic, this manager also is part of the employer’s emergency response team. When she works from home during the pandemic, she uses the video relay services to participate in daily management and staff conference calls necessary to keep the firm operational.
- 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.
Vaccine Related Questions
Many employers view the COVID-19 vaccines as the key to safely bringing employees back to the workplace and ending the pandemic. Employers are wondering if they can implement mandatory vaccination policies prior to permitting employees to return to the workplace and what potential issues may arise from such a policy.
Is the vaccine a “medical examination”?
What about third parties who might administer the vaccine and any pre-screening questions they might ask?
What if an employee cannot receive the vaccine because of a “Disability”?
Does that employee pose a direct threat to other employees in the workplace?
How should employers deal with such a situation?
Attorneys Carl Habekost and Robert Solt, IV will discuss concerns presented by the COVID-19 vaccine and associated legal issues which Human Resource and Safety professionals must address involving the Americans with Disabilities Act (ADA), Title VII protections, handbooks, Title II of the Genetic Information Non-Discrimination Act (GINA), and more in this free 1-hour webinar.