Last Updated: 6.19.2020 @ 1:00 pm
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.
EEOC Pandemic Guide in effect
The Equal Employment Opportunity Commission (EEOC) created a pandemic guidance. This document is technical in nature and provides information about Titles I and V of the Americans with Disabilities Act (ADA) and Section 501 of the Rehabilitation Act as well as pandemic planning in the workplace.(1) The Pandemic Guidance document was originally issued in 2009, during the spread of H1N1 virus, and has been re-issued on March 19, 2020, to incorporate updates regarding the COVID-19 pandemic.
The U.S. Equal Employment Opportunity Commission (EEOC) also published the publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, a technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic.
This guidance establishes, among other things, that:
- businesses cannot require employees to take tests that detect COVID-19 antibodies without violating the Americans with Disabilities Act (ADA)
- This information is provided in Q&A A.7.
- Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests may be permissible under the ADA.
The CDC has advised employers not to show prejudice to individuals of Asian descent due to fear of COVID-19.
- The CDC specifically stated “do not assume that someone of Asian descent is more likely to have COVID-19.”
- Therefore, employers should ensure that all policies and decisions regarding sending employees home or working remotely must be made in a non-discriminatory manner.
- Employers should train employees to avoid racially motivated references to the origin of the COVID-19 virus.
- Employers should recognize, however, that leave taken by an employee solely for the purpose of avoiding exposure to the COVID-19 virus is not protected under the FMLA.
Section 11(C) of the Occupational Safety & Health Act (OSHA) prohibits employers from retaliating against employees who exercise rights protected under the Act. Employees who refuse to perform hazardous work because they believe they are in “imminent danger” are considered protected by Section 11(C) of the Act. Employers should develop and implement a plan to protect employees from exposure to the Coronavirus. Such a plan is the best defense against a charge of retaliation under Section 11(C) of the OSH Act.
Section 7 of the National Labor Relations Act (NLRA) provides protection to employees who engage in concerted activity. This includes employees who discuss the safety and health of the work environment, such as COVID-19. Employers should avoid retaliating against employees for discussing issues concerning the COVID-19 virus.
FAQs – HIRING DURING THE COVID-19 PANDEMIC
Q:. If an employer is hiring, may it screen applicants for symptoms of COVID-19?
A: 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 allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.
Q:. May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
A: 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.
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: May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
- According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
- CDC has issued guidance applicable to all workplaces generally, but also has issued more specific guidance for particular types of workplaces (e.g. health care employees). Guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety. To repeat: the ADA does not interfere with employers following recommendations of the CDC or public health authorities.
Q: 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?
A: Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.