With the onset of COVID-19, many employers have had to face the possibility of the virus entering the workplace. Normally, under the Americans with Disabilities Act (ADA), employers are prohibited from asking employees about symptoms or illnesses they’ve experienced. However, during a pandemic, certain exceptions to this rule can be made.¹
The U.S. Equal Employment Opportunity Commission (EEOC), which enforces the ADA and the Rehabilitation Act, has offered some guidance to employers regarding how to navigate these regulations during the pandemic. We’ve outlined some of the points that may be instructive in preventing and handling workplace exposure.
Exceptions to the ADA
In a recent statement, the EEOC provided clarification regarding how reasonable accommodation and non-discrimination requirements should be handled during the COVID-19 crisis.
“The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19,” the agency said in the statement.¹
This recommended course of action is also reflected in the ADA itself. The act prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons, unless the circumstances match one of the act’s stated exceptions. One of these is a situation where the individual poses a “direct threat,” or a significant risk of substantial harm even when given reasonable accommodation. The EEOC has stated that the COVID-19 pandemic meets this direct threat standard.
Under such circumstances, employers have wider discretion concerning inquiries into employees’ health. During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of the virus. For COVID-19, these symptoms include fever, chills, cough, shortness of breath, and sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.²
What To Do if an Employee Tests Positive for COVID-19
In the interest of workplace safety, employers may take appropriate actions to prevent the spread of COVID-19. These may be in the form of inquiries into employee symptoms or requests for employees to stay home. Although the ADA does provide employers the flexibility of taking proper precautions during a pandemic, they are still expected to uphold the ADA’s standards for confidentiality. This means that employers should not share information concerning an employee’s medical status with other employees.
If an employee tests positive for COVID-19, employers should follow these guidelines:
- The infected employee should be sent home or asked not to come into the office
- Infected employees should stay home until released by their medical provider or local health provider
- Consider sending home all employees who worked closely with the infected employee to ensure the infection does not spread
- Before they depart, ask infected employees to identify all individuals who worked in close proximity (within six feet) for a prolonged period of time (10 minutes or more to 30 minutes or more) with them during the 48-hour period before the onset of symptoms to ensure you have a full list of those who should be sent home
- When sending the employees home, do not identify the infected employee by name or you may risk a violation of HIPAA Privacy laws
The Centers for Disease Control and Prevention (CDC) recommends that any employees who worked closely with an infected worker should proceed based on the CDC Public Health Recommendations for Community-Related Exposure. These include staying home for 14 days after being exposed, maintaining social distance from others, and self-monitoring for symptoms (i.e., fever, cough, or shortness of breath).³