On March 13, we outlined the guidance that had been issued by different federal agencies for employers on COVID-19 and pandemic planning. On March 19, the Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal anti-discrimination law, updated its 2009 guidance on Pandemic Preparedness in the Workplace and the Americans With Disabilities Act (ADA). Here are a few of the key takeaways related to COVID-19:
- The EEOC has determined that COVID-19 currently meets the “direct threat” standard under the ADA. A "direct threat" is "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The direct threat status makes it permissible for employers to conduct certain medical inquiries and examination related to COVID-19 without running afoul of the ADA (e.g., asking an employee if they are experiencing COVID-19 symptoms or taking an employee’s temperature). Keep in mind that medical inquiries and examinations must be limited to COVID-19 and that this status may change as the CDC and public health authorities readdress whether COVID-19 still poses a direct threat.
- Based on current CDC guidance on COVID-19, an employer can send home an employee with COVID-19 or symptoms associated with it. The CDC’s current guidance is that employees who become ill with symptoms consistent with COVID-19 should leave the workplace. While that guidance remains in place, advising an employee with the virus or its symptoms to go home will not be considered a disability-related action under the ADA.
- If an employee has returned from travel (whether personal or work-related), an employer may ask questions about the employee’s potential exposure to COVID-19 during the trip. Currently, Australia, Canada, Brazil, Japan, Israel, Malaysia and South Korea are all CDC Level 3 Travel Health Notice countries without restrictions on re-entry to the United States, and domestic travel is also generally being advised against. Employers should follow CDC, state and local health authority guidance about which travel locations pose a risk and what information can be required from an employee who has traveled to those specific locations before he or she can return to work.
The full text of the EEOC’s revised guidance on Pandemic Preparedness and the ADA is available here.
If you have any questions on this topic, or need assistance navigating these changes, please contact our Labor & Employment Law Practice Group and subscribe to our Labor & Employment E-Briefs to keep up with the latest HR news, tips, and updates.
Woods Aitken has also launched a coronavirus resource page that includes valuable information regarding the coronavirus pandemic and all of our recent publications on COVID-19. We encourage you to visit this page often for updates.