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The EEOC has recently issued updated guidance to employers outlining the action they may or may not take under the Americans with Disabilities Act to keep employees healthy during the current pandemic.

Excluding COVID-19 Positive or Symptomatic Employees

Employees with COVID-19 or symptoms of it, are currently considered a “direct threat” in the workplace. As a result, employees may be excluded from the workplace and are not protected by the non-discrimination provisions of the American with Disabilities Act.

  1. You may screen job applicants for symptoms of COVID-19 after making a conditional job offer, including taking their temperature, as long as you do so for all entering employees in the same type of job.
  2. You may require job applicants to undergo a post-offer medical examination to ensure they do not have COVID-19, or symptoms of it.
  3. You may delay or rescind a job offer made to a job applicant based on the results of a post-offer medical examination if it reveals that the applicant has COVID-19 or symptoms of it.
  4. You may take employee’s temperatures on a regular basis, maintaining confidentiality.
  5. You may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.
  6. You may send home an employee with COVID-19 or symptoms associated with it
  7. You may require employees who have been absent due to COVID-19 illness or symptoms to provide a doctor’s note certifying fitness to return to work.
  8. You may ask employees returning from travel about possible exposure to COVID-19, even if the travel was personal, and you may require travelers to stay at home for several days until it is clear they do not have COVID-19 symptoms.

Identifying Employers at Higher Risk for Severe Illness 

  1. You may not ask employees who do not have COVID-19 symptoms to disclose whether they have a medical condition that the CDC says could make them more vulnerable.
  2. You may not bar an employee from returning to the workplace solely because they are over the age of 65 or have medical conditions that make them more vulnerable to COVID-19 complications.
  3. If an employee voluntarily discloses that they have a specific medical condition or disability that puts them at increased risk of COVID-19 complications, you should ask them to describe the type of assistance they think will be needed, like telework or leave for a medical appointment.
  4. Employees with disabilities that put them at high risk for complications may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.
  5. You may make inquiries that are designed to identify potential non-medical reasons for absence during a pandemic. The inquiry should be structured so that the employee gives one answer of “yes” or “no” to the question.

Example

ADA Compliant Pandemic Employee Survey

Directions: Answer “yes” to the whole question without specifying the factor that applies to you. During this pandemic, are you unable to come to work because of any of the following reasons:

  • Schools or day-care centers are closed, and you need to care for a child
  • Other services are unavailable, and you need to care for other dependents
  • Public transport is sporadic or unavailable, and you are unable to travel to work
  • You or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the COVID-19, and you have been advised by public health authorities not to come to work.

Answer: YES_____ NO_____ 

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