FAQ: Coronavirus and the ADA

The Americans with Disabilities Act (“ADA”) protects employees or prospective employees from discrimination in the workplace. The ADA generally prohibits, among other things, subjecting current or potential employees to medical screenings, or making disability-related inquiries as to employees whether they are disabled or not.

The problem with the ADA in light of the current COVID-19 a/k/a coronavirus outbreak is that the definitions of what constitutes a “medical screening” or “disability-related inquiry” are broad. For example, under the ADA a medical screening is considered to be any procedure or test that seeks information about an individual’s physical or mental impairments or health. A disability-related inquiry, on the other hand, is defined as any inquiry likely to elicit information about a disability, such as asking an individual if his immune system is compromised, as a compromised immune system can be closely associated with conditions such as cancer.

The ADA applies to all employers who have 15 or more employees.

The ADA is enforced by the Equal Employment Opportunity Commission (“EEOC”). Additionally, persons who believe they are the victim of an ADA violation may sue privately.

Yes. Requiring an employee who either has COVID-19 or who is displaying COVID-19 symptoms is not considered to be a disability-related action and is in compliance with Centers for Disease Control (“CDC”) recommendations regarding COVID-19. Further, the action would also be permitted under the ADA if the illness were serious enough to pose a direct threat, which is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” COVID-19, an infectious disease, meets the definition of a direct threat under the ADA.

Yes. While taking an employee’s temperature is a medical examination ordinarily prohibited by the ADA, the EEOC has stated that in light of the COVID-19 pandemic, temperatures may be taken. Information May I legally require an employee who has not been diagnosed with COVID-19, but who has COVID-19 symptoms, to go home?

concerning temperatures (i.e., whether an employee does or does not have a fever) must be treated as confidential under the ADA.

Yes. The ADA does not prohibit employers from requiring employees to follow infectious control procedures, such as hand washing or requiring employees to wear personal protective equipment (i.e., masks, gloves, etc.). However, employers are required to still provide reasonable accommodations if necessary with regard to any personal protective equipment (for example, making non-latex gloves available for employees with latex allergies).

Yes. Notwithstanding the pandemic, the ADA still applies. Absent undue hardship, employers are required to offer employees reasonable accommodations even when they are working from home. For example, if a low-vision employee has a screen reader installed on his or her work computer as a reasonable accommodation, and if the employer instructs all employees to check out company-issued laptops and work remotely from home, a screen reader should be installed on the employee’s company laptop as well.

Yes, but only after a conditional job offer has been extended, and provided the employer is screening all new hires the same. If the screening reveals COVID-19 or possible COVID-19, the employer may delay the start date or rescind the job offer.

Yes. However, it should be recognized that as the health care system is overwhelmed by the COVID-19 epidemic, it may not be possible to get doctor’s notes.

Under the ADA, medical information is generally treated as confidential. As a general rule, employers should take steps to mitigate the exposure while that the same time protecting the identity of any employee diagnosed with COVID-19. This may be done by, for example, sending a company-wide email reporting that there has been a confirmed case of COVID-19 in the workplace, directing employees to seek medical attention if they believe they have symptoms, and reinforcing the CDC guidelines regarding hand washing, social distancing, and other protective measures.

If a smaller group of employees or customers has been exposed to the employee—for example, if the infected employee shares an office with another employee, or recently attended a meeting—each potentially affected employee should be informed that they may have been at a higher risk of close contact with a confirmed COVID-19 case. The natural human reaction to such news will likely be to ask about who the infected individual was; however, employers should not reveal the identity of the affected employee absent consent from the affected employee.

Consistent with the ADA, the CDC has issued the following guidance: “If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA).”