We operate a nonprofit social services agency. In response to the Covid-19 pandemic, we have taken what we believe to be very aggressive steps to protect our nonprofit’s clients and employees. These efforts include taking the body temperatures of employees and clients, asking for doctors’ notes from employees returning from suspected exposure, and requiring testing for employees returning from self- or medically-suggested quarantines.
We are also very aware of our obligations to comply with the Americans with Disabilities Act (ADA), and we are proud to have a good history of providing accommodations for our disabled employees. We take our obligation to ensure the protections this law provides very seriously.
As we take employees’ and clients’ temperatures, ask for doctors’ notes, and ask for Covid-19 tests for returning employees for everyone’s protection, we are concerned that we may be violating the ADA with some of these requirements.
Could you let us know what the ADA allows us to do to protect our employees and yet remain compliant?
It is in a remarkable time that we try to maintain “business as usual.”
The fact is that business is no longer anywhere near “as usual,” and the efforts one makes to operate any business must now be made within one overarching priority: to prevent, as far as is possible, the spread of the virus. Every action taken and every decision makes must be evaluated in light of this priority.
We have all seen an effort on the part of lawmakers to react to the impact on employment decisions and actions, including efforts such as the federal paid leaves under the Families First Coronavirus Response Act (FFCRA) and the expanded unemployment benefits that have recently expired.
However, the existing laws, including the ADA, have also had to adapt to the new demands that face the workplace. A substantial and valuable part of this response is guidance from the Equal Employment Opportunity Commission (EEOC) that explains what the ADA requires and what it allows employers to do with respect to employees with disabilities in the effort to protect the health of all employees in the workplace in light of this pandemic.
Many of the answers to your concerns are addressed by this guidance. For example, the EEOC says the following:
- Symptoms relating to Covid-19. Employers may ask employees if they are experiencing symptoms of the Covid-19 virus, but they may not ask about symptoms unassociated with the virus. The EEOC suggests checking the updates from the Center of Disease Control (CDC) for the most recent list of symptoms.
- Confidentiality of test results. Taking an employee’s temperature is a medical examination ordinarily prohibited, but due to the urgency of making and keeping the workplace safe during the pandemic, employers may implement these measurements. The EEOC reminds employers, however, that any information gathered as a result of such tests must be maintained confidentially.
- Flexibility for doctors’ notes. A doctor’s note is permitted to clear or allow an employee to return to work. The EEOC does caution, however, that healthcare professionals may be too busy during the pandemic to quickly provide such documentation. Employers should take this reality into account and consider extending submission deadlines whenever asking employees to provide such notes.
- Accurate and reliable testing. An employer may choose to administer Covid-19 testing for employees who have been in quarantine before allowing them to return to the workplace. The health of the many in this case takes priority: a person with the virus is a direct threat to the health of others. This ability to test, however, is subject to the understanding that the test used must be accurate and reliable.
- Antibody testing. The EEOC is clear that antibody testing is not An antibody test is different from a test to determine whether someone has an active case of Covid-19. An antibody test is not consistent with ADA guidelines—these test results are “not job related nor consistent with business necessity.”
- Hiring decisions. EEOC holds that whether or not the applicant has a disability, employers may do the following:
- Screen job applicants for symptoms of Covid-19 after making a conditional job offer
- Delay the start date of an applicant with Covid-19 or symptoms of the virus
- Withdraw a job offer when the employer needs the applicant to start immediately, but the individual is known to have Covid-19 or shows symptoms
- According to current CDC guidance, such an individual should not be in the workplace
- Providing reasonable accommodations. The EEOC notes that the process to evaluate the need for accommodations has become more complex with the onset of Covid-19. For example, a requested accommodation that may not have posed an “undue hardship” previously, and thus no basis to deny the accommodation, may pose an undue hardship now.
You can find this guidance, which covers these and many other issues, at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
While the pandemic has resulted in new complexities and uncertainties in the workplace, the duty to engage in the interactive process with employees with disabilities has not been affected. This is especially true with employees who have contracted the virus, who have had symptoms of it, or who have developed stress-related conditions due to the pandemic that affect their abilities to perform their jobs. When it comes to the ADA and continuing to remain compliant, the EEOC’s insight and guidance has proved helpful to assist the employer’s ability to deal with these complexities and uncertainties.
Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio. During his legal career, Mike worked for 32 years with a Sacramento law firm, where he focused on employment litigation in both state and federal courts. During that time, he defended employers in litigation. In 2016, he began his work as an Employment Risk Manager for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. Mike lives in Lakewood, Ohio, and is a graduate of the University of California, Davis, with a bachelor’s degree in political science, and a 1982 graduate of the University of the Pacific, McGeorge School of Law.
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