Date: May 7, 2020

This summary covers only the legal considerations and not public health and safety recommendations for preventing the spread of COVID-19. Employers should consult the Center for Disease Control and public health agencies for how to keep their workforces safe.

In 2009, the Equal Employment Opportunity Commission (“EEOC”) issued guidance entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” More than a decade later, the EEOC has published updated guidance to address the ongoing national emergency caused by COVID-19. This week, EEOC followed-up with further practical guidance, in the form of an FAQ. The advice is crucial because—while on the periphery of many employers’ thoughts—aggressive workplace policies that may minimize the spread of the disease may also risk violation of federal anti-discrimination laws.

The guidance largely focuses on two concerns:

(1) how can employers ensure that new hires are not bringing COVID-19 into the workplace?
(2) how can employers respond to current employees exhibiting symptoms or who have possible exposure to COVID-19?

The following is a brief summary of both.

(1) New Hires

The ADA strictly prohibits employers from inquiring into the health of applicants before offering employment. However, they may require medical examinations after extending a conditional offer of employment. While designed to prevent exclusion of disabled applicants, it poses obvious concerns in the time of COVID-19, since safety-conscious employers may be overly zealous in attempts to protect their workforce.

The practical concern is how to treat applicants that test positive for COVID-19 during the post-offer examination. Typically, the ADA would not allow rescinding an offer to an employee for medical reasons, unless it prevents them from performing the essential functions of their job. This is not applicable to COVID-19.

Simply put, COVID-19 is considered a “direct threat” to health and safety under the ADA. This determination is based on the CDC’s severity classifications and the recommended precautionary measures that we are all familiar with (e.g., restaurant closures, canceled gatherings, etc.). As a result, the EEOC has stated that the “individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.”

This sets a tone that is notably different than the case-by-case, individualized assessment that the ADA usually requires. The EEOC’s decision to allow for a per se rule against hiring employees with conditional offers of employment that test positive for COVID-19 is, perhaps, one of the most significant indications of the seriousness of the current crisis.

Further complicating the issue, the FAQ distinguishes between applicants that test positive for COVID-19 and applicants that are at a higher risk for complications (e.g., over 65 years old; pregnant; etc.). Where a post-offer exam reveals that the applicant is at a higher risk, an employer is not permitted to withdraw an offer or unilaterally postpone the start date. Rather, the EEOC instructs employers to allow the applicant to telework or discuss with them if they would like to postpone their start date. Effectively, the employer must engage in a modified interactive process, where the vulnerable employee has the final say.

(2) Active Employees

Ordinarily, employment decisions based upon an employee’s health are unadvisable. That said, a national emergency and global pandemic are not “ordinary.” As one might expect, the circumstances provide leeway for employers to keep their workforce safe and healthy. Therefore, the EEOC has issued the following guidance to employers:

  • an employer may send an employee home if they are experiencing COVID-19 related symptoms;
  • if an employee reports feeling ill or calls out sick, the employer may explicitly as them if they are experiencing COVID-19 symptoms;
  • an employer may take employees’ temperatures as a condition of entering the workplace;
  • when an employee has possible exposure to COVID-19 (e.g., travel; proximity to someone with symptoms, etc.), employers do not need to wait until symptoms develop to instruct them to remain home; and
  • while not absolved of providing accommodations to disabled employees that request one, the EEOC recognizes that there may be reasonable delay in engaging in the interactive process; and
  • as a practical matter, even where access to medical professionals is likely difficult, employers may still require a note certifying a returning employee’s fitness for duty.

Additionally, while falling short of saying it explicitly, the EEOC suggests that—due to COVID-19’s classification as a “direct threat”—employers may ask employees without symptoms whether they have any medical condition that make them vulnerable to complications related to COVID-19.

Interestingly, the EEOC explicitly reminds employers that, if they require employees to wear Personal Protective Equipment (“PPE”), they must undergo the traditional interactive process for employees that request an accommodation for disability or religious reasons. Unless it poses an undue hardship, the employee is entitled to a reasonable accommodation (e.g., providing non-latex gloves; modified masks for employees that read lips; etc.).

Due to this recent guidance, prior advice regarding recommended “best practices” is ill-fitted for guiding employment decisions during the pandemic. Rather, employers looking to take preemptive safety measures are advised to adjust their workplace policies and handbooks (possibly through formal addendum) to provide notice to employees and establish uniform practices to combat the crisis.