Dive Brief:

• During the COVID-19 pandemic, employers covered by the Americans with Disabilities Act (ADA) may measure employees' body temperature, even though it is a medical exam, according to the U.S. Equal Employment Opportunity Commission (EEOC). The guidance comes from an EEOC statement updated March 19 that directs employers to a publication written during the H1N1 outbreak.
• An ADA-covered employer can ask employees who call in sick if they are experiencing symptoms of a pandemic virus so as to protect the rest of its workforce during a pandemic, the Commission said in the statement. The agency noted, however, that employers must maintain "all information about employee illness as a confidential medical record in compliance with the ADA." In addition, the ADA does not interfere with an employer's ability to follow the Centers for Disease Control and Prevention's (CDC) advice that "employees who become ill with symptoms of COVID-19 should leave the workplace." When employees return to work, the ADA allows employers to require a doctor's certification because the inquiry is not disability-related or, in the time of a pandemic, would be justified under ADA standards for disability-related inquiries, EEOC said.
• If hiring, employers may screen applicants for COVID-19 symptoms, EEOC said. It must do so for "all entering employees in the same type of job," regardless of whether the applicant has a disability. Furthermore, employers may take applicant's temperatures "as part of a post-offer, pre-employment medical exams." Employers may also delay the start date of applicants who exhibit COVID-19 symptoms, per CDC guidance, EEOC said. An employer can withdraw a job offer if it needs an applicant to start immediately but the applicant has COVID-19 or its symptoms.  

Dive Insight:​

EEOC noted that the ADA still applies but does not prevent employers from following the guidelines and suggestions made by the CDC or health authorities. The ADA covers employers with 15 or more employees, including state and local governments. Covered employers are not allowed to discriminate against qualified individuals with disabilities in employment, including job application procedures, hiring and more.

The U.S. Department of Labor's (DOL) Wage and Hour Division and Occupational Safety and Health Administration (OSHA) also recently announced coronavirus guidance for employers. Among other things, the guidance discusses whether the Fair Labor Standards Act obligates employers to pay workers who cannot work from home, if required. Separately, OSHA provides strategies for preventing the spread of COVID-19 and includes guidance on safe work practices.

As the COVID-19 pandemic continues, a rapidly increasing number of employers, both state and federal, are adopting or expanding remote work policies and procedures as a means of keeping their workforce safe and productive.