Labor & Employment Law Blog

1. Employers covered by the ADA, generally, consisting of those with 15 or more employees, may ask employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat, if employees call in sick or report feeling ill at work. Employers must still maintain all information about employee illness as a confidential medical record.
2. Employers may measure an employees' body temperature, even though that is technically a “medical exam” under the ADA, but employers should be aware that some people with COVID-19 do not have a fever. Employers may also take the temperature of a job applicant if they have been made a conditional offer of employment,
3. Employers may require doctors’ notes from returning employees certifying their fitness to work.  However, the EEOC notes that because health care professionals may be too busy to prepare fitness for duty documentation for all such employees, new approaches may be necessary, such as reliance on local clinics to provide a form or an e-mail to certify that an individual does not have the pandemic virus.
   1. Employers in Orange County should note that the county appears to prohibit requiring a doctor’s note before permitting an employee to return to work.
4. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. 
5. An employer may delay the start date of an applicant who has COVID-19 or symptoms associated with it, because such an individual should not be in the workplace under current CDC guidance.   
6. An employer may withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it, because such an individual cannot safely enter the workplace.

The EEOC’s guidance follows its earlier guidance issued during the H1N1 pandemic, Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, which provides more detailed information on such issues as the types of information an employer may request from an employee who calls in sick, when the ADA allows employers to require employees to stay home from work, and what employers can require in terms of doctors’ notes or other fitness for duty certifications.

The guidance is not intended to answer all of an employer’s questions regarding compliance with the ADA during this fast-moving pandemic, but should serve as a good basis for crafting and implementing effective and legally-compliant policies at the present time.