Commentary

COVID-19, the ADA and the EEOC’s Position

I have had several questions about COVID-19 and the Equal Employment Opportunity Commission’s position on the matter.  Below are some basic answers for your consideration.

First, employers may take the temperature of all employees who will be physically entering any workplace.  Employers may also ask employees whether they have COVID-19 or symptoms associated with COVID-19, and whether they have been tested for it.  If an employee refuses to have his or her temperature taken or answer COVID-19 related questions, the employee may be barred from entering the workplace.  Generally, employers may not make these inquiries of employees who are teleworking.

If an employer wishes to ask only particular employees if they have COVID-19, or require that only particular employees have his or her temperature taken, the employer must have a reasonable basis or belief, based on objective evidence, that the person might have COVID-19.  However, in my opinion, it is better to ask all or none of the employees.  In addition, rather than asking a company employee whether or not a member of the employee’s family has COVID-19, the EEOC suggests that employers should ask whether the employees have had contact with anyone who the employee knows to have COVID-19.

Employers may notify public health authorities if they learn that an employee has COVID-19.  When doing so, employers should not disclose the employee’s identity.

The EEOC’s position is that COVID-19 currently satisfies the direct threat standard.  It is unclear whether COVID-19 qualifies as a disability under the ADA.  That may change.  The agency anticipates providing clarification on this issue at some point in the future.  In the meantime, employers generally do not have to provide a reasonable accommodation to an employee who lives in the same household as someone who, due to a disability, is at a greater risk of COVID-19.

Employers cannot exclude workers from the workplace on the basis that they are 65 or older because they are deemed to be at higher risk of experiencing severe symptoms if they contract COVID-19.  Age cannot matter in any instance.  The same applies to pregnant employees.  At the same time, employers are not  required to grant older workers or pregnant workers special requests to telework simply because of the current pandemic.  Rather, both should be granted under the same conditions as other similarly situated employees.

The agency also highlighted the availability of two publications related to COVID-19:  “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” and “What You Should Know About the ADA, the Rehabilitation Act and COVID-19.”  Those can be found on the EEOC’s website.