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CORONAVIRUS PANDEMIC: Updated EEOC COVID-19 Preparedness Guidance Focuses on ADA

CORONAVIRUS PANDEMIC: Updated EEOC COVID-19 Preparedness Guidance Focuses on ADA

On March 21, 2020, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces federal anti-discrimination laws, updated its guidance on the COVID-19 pandemic. The updated guidance focuses on the impact COVID-19 has on an employer’s duties under the American’s with Disabilities Act (ADA).

The EEOC update, located here, states in part:

UPDATED IN RESPONSE TO COVID-19 PANDEMIC – March 21, 2020

NOTE ABOUT MARCH 19, 2020 UPDATE:  The EEOC is updating this 2009 publication to address its application to coronavirus disease 2019 (COVID-19).  Employers and employees should follow guidance from the Centers for Disease Control and Prevention (CDC) as well as state/local public health authorities on how best to slow the spread of this disease and protect workers, customers, clients, and the general public.  The ADA and the Rehabilitation Act do not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take relating to the workplace.  This update retains the principles from the 2009 document but incorporates new information to respond to current employer questions.  For readers’ ease the COVID-19 updates are all in bold.

Under the ADA, employers may not make disability-related inquiries or require medical examinations unless they are job-related and consistent with business necessity. Such inquires and examinations are allowed if an employee is a direct threat, meaning they create a significant risk of substantial harm to themselves or others. Employees that are a direct threat are not protected by the nondiscrimination provisions of the ADA.

The updated guidance states the following about medical inquiries and examinations:

  • During hiring, employers may now screen applicants for COVID-19 symptoms, after making a conditional job offer, if they do so for all applicants.
  • Employers may take an applicant’s temperature, after making a conditional offer.
  • Employers may delay the start date of an applicant who has COVID-19 symptoms.
  • Employers may withdraw a job offer to an applicant with COVID-19 symptoms if the employer needs the applicant to start immediately.
  • Employers may also take current employees’ temperatures and send home employees with COVID-19 symptoms.

Regarding whether COVID-19 is a direct threat, the update states:

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.

Although the EEOC has loosened some of the restrictions normally in place under the ADA, it is important to note that the ADA’s confidentiality provisions are still in full effect. Further, regarding hiring, employers may only make medical inquiries or examinations if they do so for all applicants. Finally, once the pandemic ends, the rules will return to normal.

If you think your employer has violated your rights under the ADA, contact the attorneys at Lebau & Neuworth at at 888-456-2529 or lebauneuworth.com/contact-us.

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