As businesses large and small prepare to reopen, employers should remain mindful of their obligations under the Americans with Disabilities Act (which covers companies with 15 or more employees). The U.S. Equal Employment Opportunity Commission recently published Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidelines to help employers navigate common questions arising in the age of COVID-19. The following are a few key takeaways:
- Whereas it is ordinarily a violation of the ADA to ask employees questions about their health status, during a pandemic, employers are permitted to ask employees who call in sick whether they are experiencing symptoms of COVID-19.
- Employers can – and often should – advise their workforce about the existence of COVID-19 cases; however, personal information (including the identities of those infected) should be kept confidential.
- Employers may take temperatures of employees prior to shifts to determine if they have a fever. (During non-pandemic situations, this constitutes an impermissible medical examination.)
- Responsibilities to individuals with disabilities continue during the pandemic, which includes engaging in the “interactive process” to explore whether “reasonable accommodations” can be made to assist disabled employees in performing the essential functions of their positions. As always, determining whether a qualifying disability exists can be a fact-intensive inquiry. Although a mild case of COVID-19 would likely not rise to the level of a “disability,” a severe case that complicates or exacerbates a pre-existing health condition would likely qualify. Importantly: “Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can it lawfully exclude him from employment or employment-related activities.”
Prior to reopening, employers would also be well advised to review (among other resources) OSHA Guidance on Preparing Workplaces for COVID-19, which offers workplace preparedness advice to minimize the risk of infections.
As the world continues to grapple with the COVID-19 pandemic, in the employment law context, the maxim “an ounce of prevention is worth a pound of cure” has perhaps never been so fitting.
Do you need assistance in navigating the rapidly evolving legal landscape? Contact us today at firstname.lastname@example.org or (248) 477-6300.