By: Michelle D. Patrick, Esquire
In 2009 the Equal Employment Opportunity Commission (“EEOC”), the federal agency that enforces the federal anti-discrimination laws, issued its “Pandemic Preparedness in the Workplace and Americans with Disabilities Act” (hereinafter “EEOC guidance”) to guide employers and employers during the H1N1 swine flu outbreak. It recently updated and re-issued that document to clarify how it pertains to the Coronavirus pandemic. EEOC guidance makes it clear that nothing in the Americans with Disabilities Act (“ADA”) or the Rehabilitation Act should prevent employers from following advice provided by the Centers for Disease Control (“CDC”) and other state or local public health authorities.
While updating some of its prior guidance, the key part of the EEOC guidance is a question and answer section that may be useful to both employers and employees. Key questions, which relate only to ADA covered employers (those with 15 or more employees) include:
- Can employers take the body temperature of employees during the pandemic?
Answer: Yes. Under normal circumstances this would not likely be permitted but because the CDC has acknowledged the community spread of COVID-19 and issued precautions, this is now permitted.
- Can an employer require an employee to stay home if they have COVID-19 symptoms?
Answer: Yes. In addition, the CDC has stated that employees who are at work and show symptoms of COVID-19 should be sent home.
- How much information can an employer request from an employee who calls in sick?
Answer: During a pandemic, employers can ask if the employee is exhibiting symptoms of the pandemic virus. Currently this would allow an employer to ask if the employee has symptoms such as fever, chills, cough, shortness of breath or sore throat.
- Can an emploper require a doctor’s note certifying fitness to duty be required upon an employee’s return to work?
Answer: Yes. The EEOC observes that due to the severity of a pandemic, getting a fitness for duty note may be difficult and recommends that new approaches be considered such as an email or a stamp from a local clinic.
- If an employer is hiring, can that employer screen applicants for symptoms of COVID-19?
Answer: Yes. Medical exams are permitted after a conditional offer of an employment.
- Can an employer withdraw a job offer if it needs the applicant, who has symptoms of COVID-19, to start immediately?
Answer: Yes. Current CDC guidance states that this applicant cannot safely enter the workplace.
EEOC Chair Janet Dillion recently cautioned about reports of an increase in “mistreatment and harassment of Asian Americans and other people of Asian descent.” While the EEOC has issued nothing formal related to the other laws that it enforces, those laws remain in effect and should be considered when making employment decisions. Title VII of the Civil Rights Act, which prohibits discrimination based on characteristics such as national origin, race and gender may become increasingly important in light of Chair Dillion’s recent comments. Choosing to terminate an Asian employee who is the most qualified for a position while retaining a non-Asian less qualified employee because he/she is Asian is still likely illegal.
If you have any questions, or need any additional information on the EEOC’s guidance, or any other employment related issues, please contact The Ezold Law Firm at (610) 660-5585.