The following are excerpts from a publication published by the U.S. Equal Employment Opportunity Commission entitled Pandemic Preparedness in the Workplace and the Americans with Disabilities Act which is provided to help employers and employees implement strategies to navigate the impact of COVID-19 in the workplace.
Q: During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may an employer still request information to determine if the condition is a disability?
A: Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a “disability” as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment).
Q: When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
A: 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.
Q: Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
A: 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.
Q: When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty?
A: Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.
Q: If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results?
A: Yes. The employer needs to maintain the confidentiality of this information.
Q: May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19?
A: Yes.
Q: Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?
A: No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.
Q: How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian?
A: Managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about the coronavirus or its origins.
Q: As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace?
A: The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.
Q: What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19?
A: An employee – or a third party, such as an employee’s doctor – must let the employer know that she needs a change for a reason related to a medical condition (here, the underlying condition). Individuals may request accommodation in conversation or in writing. While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, she may do so.
The employee or her representative should communicate that she has a medical condition that necessitates a change to meet a medical need. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.
If you have further questions or want more information contact the Law Office of Phillip A. Austin at [email protected] , call us at 480-644-0506, or visit AZJusticeforAll.org