Posted on June 2, 2020 by Lasher Holzapfel Sperry & Ebberson
As parts of the country begin to re-open following closures associated with the COVID-19 pandemic, employers will face many issues regarding the best way to bring their employees back to work. Throughout the pandemic, federal agencies, including the U.S. Equal Employment Opportunity Commission, have provided guidance for employers regarding the application of federal laws to the unprecedented circumstances created by the coronavirus. In particular, employers need to be aware of the interplay between the COVID-19 pandemic and the Americans with Disabilities Act (“ADA”).
The ADA requires that any medical testing of an employee, including taking an employee’s temperature, be “job related and consistent with business necessity.” The EEOC has indicated that under this standard, employers may administer COVID-19 testing to employees before they enter the workplace because COVID-19-positive employees pose a direct threat to the health of others. Likewise, ADA-covered employers may ask employees if they are experiencing symptoms of the virus and may request a doctor’s note certifying fitness for duty. The EEOC notes that, as a practical matter, doctors and other health care professionals may be too busy as a result of the pandemic to provide fitness-for-duty documentation, so employers may need to rely on local clinics to certify that an individual does not have the virus.
With regard to hiring and onboarding, an employer can screen job applicants for COVID-19 symptoms, including taking an employee’s temperature, but only after making a conditional job offer, and as long as the employer screens all employees entering into the same type of job. This ADA rule applies regardless of whether the applicant has a disability.
Employers also need to be prepared when an employee asks for a reasonable accommodation associated with COVID-19. This can occur when an individual has a disability that puts him or her at greater risk from COVID-19. The employee may request accommodations to eliminate possible exposure; the EEOC has provided examples of possible accommodations, including changing the work environment (for example, designating one-way aisles; using plexiglass, or other barriers).
These are just a few examples of the issues that could potentially arise under the ADA because of the COVID-19 pandemic. If you need help re-opening your business or requesting an accommodation to return to work during these challenging times, the employment attorneys here at Lasher Holzapfel Sperry & Ebberson are ready to take your call.