With the growing concern over coronavirus, last week the Equal Employment Opportunity Commission (EEOC) released “What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus.” The short article notes that the agency’s standard pandemic guidance identifies “relevant established principles and answers questions frequently asked about the workplace during Coronavirus-like events.”
While the article does offer a little new information, the biggest takeaway should be that although the coronavirus is new, you can still rely on plans and processes used for previous threats like the H1N1 flu.
The ADA and Rehabilitation Act
The EEOC enforces workplace antidiscrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, including the requirement for reasonable accommodation and rules about medical examinations and inquiries.
The Rehabilitation Act makes it unlawful to discriminate solely based on any disability under any program or activity receiving federal financial assistance or conducted by a federal executive or the U.S. Postal Service. The definition of disability under the Rehabilitation Act and in the ADA as amended are identical.
The ADA requires employers to treat any medical information obtained from a disability- related inquiry or medical exam (including medical information from voluntary health or wellness programs) or through voluntary disclosure by an employee as a confidential medical record that must be kept separate from the employee’s personnel file.
In limited circumstances, the information may be shared with supervisors, managers, first-aid and safety personnel, and government officials investigating compliance with the ADA.
Disability-Related Inquiries and Medical Exams
It’s human nature to ask an employee who seems ill how they are feeling or if there’s something wrong. And general inquiries about an employee’s well-being do not violate the ADA.
The EEOC’s guidance on disability-related inquiries gives the following examples of permitted questions:
- Asking generally about an employee’s well-being (e.g., How are you?),
- Asking employees who looks tired or ill if they are feeling OK,
- Asking employees who are sneezing or coughing whether they have a cold or allergies, or
- Asking how employees are doing following the death of loved ones or the end of a marriage/relationship.
However, the ADA and most state antidiscrimination laws prohibit employers from making inquiries that are likely to elicit information about a disability from an employee unless the inquiry is job-related and consistent with business necessity.
The EEOC’s pandemic guidance includes an ADA-compliant anonymous employee survey you can distribute before a flu outbreak. The survey describes several situations—both disability-related and otherwise—in which an employee might need to take time off from work during a pandemic and asks the employee to simply say whether any situation would apply to him or her, without specifying the situation.
The guidance clarifies that you may require entering employees to take a medical exam to determine exposure to the flu virus after making a conditional job offer but before the person starts working.
Remember, if you’re going to give a conditional-offer exam, all entering employees in the same job category must take the exam. You also may require employees to adopt infection-control practices, such as regular handwashing and wearing personal protective gear, subject to reasonable accommodation, if necessary. Likewise, encouraging or requiring employees to telecommute may be an important infection-control strategy.
More from the EEOC Guidance
The EEOC’s guidance reminds employers of their duties and rights under the ADA in planning for a pandemic. The guidance document covers relevant ADA requirements and standards and ADA-compliant employer practices for pandemic preparedness. It also identifies established ADA principles that are relevant to questions frequently asked about the workplace during coronavirus-like events such as:
- How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during a coronavirus-like event?
- When may an ADA-covered employer take the body temperature of employees during a coronavirus-like event?
- Does the ADA allow employers to require employees to stay home if they have symptoms of the coronavirus?
- When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty?
The document also provides information about religious accommodation under Title VII of the Civil Rights Act of 1964. The guidance is available on the EEOC’s website at www.eeoc.gov/facts/pandemic_flu.html.
The important new piece of information in the EEOC’s article is that the agency’s pandemic guidance does “not interfere with or prevent employers from following the guidelines and suggestions made by the CDC about steps employers should take regarding the Coronavirus.”
|Joan S. Farrell, JD, is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Farrell writes extensively on the topics of workplace discrimination, unlawful harassment, retaliation, and reasonable accommodation. Before coming to BLR, Ms. Farrell worked as in-house counsel for a multistate employer where she represented management in administrative matters and provided counseling on employment practices.
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