The EEOC recently updated its guidance entitled "Pandemic Preparedness in the Workplace and the Americans With Disabilities Act", which was created in 2009 in response to the H1N1 outbreak. https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm (Mar. 20, 2020).
The EEOC states that this information is guidance only and that employers must follow "the most current information on maintaining workplace safety." The EEOC also states, in bold, that "The ADA and the Rehabilitation Act do not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take relating to the workplace."
The EEOC also stresses that this guidance is still relevant and now includes specific updates to address COVID-19. Here is a link to the guidance: https://www.eeoc.gov/facts/pandemic_flu.html. The COVID-19 updates are indicated on bold in the guidance.
One tool the EEOC includes in the guidance is an ADA-compliant employee survey to allow "employers to identify which employees are more likely to be unavailable to work in the event of a pandemic," pointing out that employers may ask questions that are not "disability-related".
A question is not disability-related "if it is designed to identify potential non-medical reasons for absence during a pandemic (e.g., curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that increase the risk of complications). The inquiry should be structured so that the employee gives one answer of "yes" or "no" to the whole question without specifying the factor(s) that apply to him. The answer need not be given anonymously."
Below is the EEOC's sample survey:
"ADA-Compliant Pre-Pandemic Employee Survey
Directions: Answer "yes" to the whole question without specifying the factor that applies to you. Simply check "yes" or "no" at the bottom of the page.
In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:
- If schools or day-care centers were closed, you would need to care for a child;
- If other services were unavailable, you would need to care for other dependents;
- If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;
- If you or a member of your household fall into one of the categories identified by the CDC as being at a high risk for serious complications from [COVID-19], you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).
Answer: YES ______ or NO ________"
The EEOC also addresses common specific issues ADA-covered employers (those with 15 or more employees) face and provides answers:
- If an employee displays symptoms associated with COVID-19 you may send them home.
- If an employee calls in sick or reports feeling ill while at work, employers can question them about symptoms to determine if they may have COVID-19 – fever, chills, cough, shortness of breath, or sore throat.
- Employers may measure an employee's body temperature.
- Employers must follow the advice of the CDC, and "state/local public health authorities regarding information needed to permit an employees return to the workplace after visiting a specified location, whether for business or personal reasons."
- Employers may screen job applicants for symptoms of COVID-19 after making a conditional job offer, including taking of temperatures. However, be aware some people with COVID-19 have no fever.
- An employer may withdraw a job offer when it needs the applicant to begin at once, but the person has COVID-19 or symptoms of it.