Lauren Symcox Voth
EEOC Publishes Guidance on Pandemic Preparedness
The World Heath Organization (WHO) has declared COVID-19 an international pandemic and as a result the Federal, Local, and State governments have declared a state of emergency across the country. Employers have received guidance from multiple sources about what to do next. In light of the advice given by WHO, the Centers for Disease Control and Prevention (CDC), government officials, doctors, and employers should remember that they must still comply with employment laws, including the Americans with Disabilities Act (ADA).
The U.S. Equal Employment Opportunity Commission (EEOC) published its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act in 2009, after the H1N1 outbreak. This guidance applies equally to the current COVID-19 pandemic. The EEOC’s guidance outlines questions and answers to guide employers before, during, and after a pandemic.
Here are highlights from the EEOC’s guidance for employers during a pandemic:
- Employers may send home employees with COVID-19-like symptoms. If an employer sends an employee home with symptoms, employers may permit the employee to take applicable paid leave for the time off work. At this time Non-Exempt employees are not required to be paid for any time off work. Exempt employees must be paid for any week in which the employee performs work. Please see our story: “House Sends Amended Coronavirus Response Act to Senate with Significantly Reduced Employee Paid Leave Protections – Vote Expected Today” for any changes related to employers’ obligations to pay employees for COVID-19 related absences.
- Employers should not ask employees if they have COVID-19. However, employers may ask employees if they are experiencing COVID-19-like symptoms such as a fever, sore throat, cough, or shortness of breath. Employers must maintain all employee provide health information separately with medical records in compliance with the ADA.
- Employers may take an employee’s temperature. Under normal conditions, an employer is not permitted to take an employee’s temperature because it is considered a medical examination. However, in this pandemic the EEOC agrees that since the CDC has issued precautions to employers, employers may measure an employee’s temperature. Be aware that, according to the EEOC and CDC, some people with COVID-19 do not have a fever.
- Avoid asking employees to disclose any condition. Employers should not ask employees to disclose any condition that may be vulnerable to COVID-19, as this is still considered a disability-related inquiry. Employees may voluntary disclose conditions that may be vulnerable to COVID-19. Employers may then engage in the interactive reasonable accommodation process and ask the employee if they require any assistance such as telecommuting or other leave as an accommodation.
- Employers may require employees to provide a doctor’s note certifying the employee’s fitness for duty before returning to work. However, the EEOC states that employers must be flexible and open to other approaches for obtaining a fitness for duty certification. Doctors will likely be overwhelmed and not able to provide proper documentation immediately or documentation may be on standard return to work forms.
Employers can view the full guidance on Pandemic Preparedness at: https://www.eeoc.gov/facts/pandemic_flu.html#q6.
An EEOC summary on What You Should Know About the ADA, the Rehabilitation Act, and COVID-19 can be found here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws