What May You Ask An Employee?
The Equal Opportunity Employment Commission (EEOC) has issued guidance on the Americans With Disabilities Act (ADA) and COVID-19. This includes how much information an employer can ask an employee about COVID-19 symptoms and when/if employee temperatures can be taken, among other things.
The highlights of the Q&A are below and the complete guidance page is
here :
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How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
o During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
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When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
o Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
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Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
o Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
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When employees return to work, does the ADA allow employers to require doctors' notes certifying their fitness for duty?
o Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
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If an employer is hiring, may it screen applicants for symptoms of COVID-19?
o 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 applies whether or not the applicant has a disability.
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May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam?
o 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.
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May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
o Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
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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?
o Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.