COVID-19 FAQ: Disability Related Inquiries and Medical Examinations

Updated April 27, 2020

Disability Related Inquiries and Medical Examinations

[od_accordion title=”Question 1. May an employer screen employees by taking their temperatures and/or asking disability related inquiries before allowing access to the workplace?” after_title=”(Updated April 27, 2020)”]Answer 1. Yes. While taking an employee’s temperature is generally considered a medical examination under the Americans with Disabilities Act (ADA) and is not permissible for current employees absent certain circumstances, the Equal Employment Opportunity Commission (EEOC) advises that, based on the current COVID-19 pandemic as assessed by the U.S. Centers for Disease Control & Prevention (CDC) and other public health authorities, an employer may measure an employee’s body temperature as a screening method during the pandemic. Under the existing circumstances, if an employee refuses to permit the employer to take his or her temperature, the ADA allows the employer to prohibit the employee’s physical presence in the workplace. In addition, President Trump’s Opening Up America Again guidance, which recommends a phased plan for state and local governments to allow businesses to reopen and employees to return to the workplace, recommends employers implement temperature checks in each of the three phases of the plan. However, the EEOC has said that employers should be aware that not all persons with COVID-19 may present with a fever. In addition, the EEOC cautions that body temperature information collected on employees should be considered medical information subject to ADA confidentiality requirements.

In addition to taking employees’ body temperatures, the EEOC expressly acknowledged in its Technical Assistance Questions and Answers that employers may ask employees if they are experiencing symptoms related to COVID-19. While the EEOC offered examples of symptoms, to include cough, sore throat, fever, chills, and shortness of breath in its March 27, 2020 webinar, the EEOC also states that employers should rely on the latest guidance on emerging symptoms from the CDC, state and local public health authorities, “and reputable medical sources.” (Employers may wish to consult the latest list of symptoms of COVID-19 that the CDC published.) Employers may exclude employees with COVID-19 or associated symptoms from the workplace because their presence would pose a direct threat to health or safety. If an employee refuses to answer his or her employer’s questions about whether he has COVID-19, symptoms associated with COVID-19, or has been tested for COVID-19, under the ADA, the employer may bar the employee’s physical presence in the workplace. To gain cooperation, an employer may want to ask the reasons for the employee’s refusal. Note that employers may not ask these questions of employees teleworking as they are not physically interacting with co-workers.

Also, if an employer wishes to ask only one particular employee to answer such questions or have his or her temperature taken, as opposed to all employees, the ADA requires that the employer have a reasonable belief based on objective evidence that this employee might have the disease. For example, if an employee has a persistent hacking cough (which is a symptom of COVID-19), the employer may ask about the cough, whether the employee has seen a doctor, or whether the employee knows if he or she might have COVID-19.

State and local governments and public health authorities are beginning to include various screening recommendations or requirements in connection with returning employees to the workplace. Employers may wish to regularly monitor applicable jurisdictions for new guidance, recommendations, and requirements related to testing. Ogletree Deakins continues to offer complimentary updated charts tracking state and local closure orders, face-covering requirements, and employee-screening requirements.[/od_accordion]

[od_accordion title=”Q2. May an employer screen employees by administering a COVID-19 test before allowing access to the workplace?” after_title=”(Updated April 27, 2020)”]A2. Yes. While requiring an employee to take a COVID-19 test is likely considered a medical examination under the ADA and generally would not be permissible to require of current employees absent certain circumstances, the EEOC has stated that in the circumstances of the current COVID-19 pandemic, “an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.” The EEOC states that employers should ensure that the tests being used are accurate and reliable, such as by consulting guidance from the U.S. Food and Drug Administration (FDA), the CDC, or state and local public health authorities. The EEOC further advises employers “to consider the incidence of false-positives or false-negatives associated with a particular test.” Even if an employer requires COVID-19 testing, the EEOC notes that employers should continue to require employees to observe other recommended infection control practices, such as social distancing, regular hand washing, and other measures).

It is not yet clear, however, whether the EEOC will make a distinction for antibody tests, which may indicate that the employee has previously been infected with the SARS-CoV-2 virus and, as a result, may be immune from its effects in the future. On the one hand, the current EEOC guidance appears focused on FDA-approved tests designed to detect an active COVID-19 infection without any mention of antibody testing. On the other hand, there is a national discussion on the potential use of antibody testing as a screening tool for allowing employees back in the workplace, and such tests might address the concern highlighted by the EEOC that COVID-19 tests for the presence of the virus cannot indicate whether an employee may acquire the virus later. For now, employers should evaluate the use of antibody testing with greater caution.

State and local governments and public health authorities are beginning to include various screening recommendations or requirements in connection with returning employees to the workplace. Employers may wish to regularly monitor applicable jurisdictions for new guidance, recommendations, and requirements related to testing. Ogletree Deakins continues to offer complimentary updated charts tracking state and local closure orders, face-covering requirements, and employee-screening requirements.[/od_accordion]

For more answers to your frequently asked questions, please select a topic below:

• ADA
• Attendance
• Compensation and Tax Issues
• Confidentiality
• Disability Related Inquiries and Medical Examinations
• Employees with Symptoms or Exposure
• Families First Coronavirus Response Act (FFCRA)
• FMLA
• Health coverage
• Hiring During the COVID-19 Pandemic
• NLRA
• Reduction in Force/WARN
• Retirement Plan Issues
• Short-term disability coverage
• Tax Credits Under FFCRA and the CARES Act
• Vacation, Paid Time Off, and Paid Sick Leave
• Wage and Hour
• Workers’ Compensation
• Workplace Safety