EEOC Declares COVID-19 a “Direct Threat,” Updates 2009 Pandemic Guidance

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As the COVID-19 pandemic continues to worsen, the Equal Employment Opportunity Commission has declared it a “direct threat,” thereby loosening the restrictions on employee medical testing and inquiries under the Americans with Disabilities Act. It has updated its 2009 pandemic guidance and its “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” resource accordingly.

The Americans with Disabilities Act prohibits employers from making disability-related inquiries and requiring medical examinations of employees except where job-related and consistent with business necessity. If employees pose a direct threat, meaning a significant risk of substantial harm, to the health or safety of themselves or others, that meets the standard.

In its 2009 pandemic guidance, the EEOC noted that a pandemic does not necessarily constitute a direct threat. It would depend on the severity of the illness, as determined by the Centers for Disease Control and public health authorities. And as of March 19, 2020, the EEOC now states that, based on such determinations, “the COVID-19 pandemic meets the direct threat standard.”

In conjunction with that statement, the EEOC has revised certain parts of its pandemic guidance and added a new COVID-19-specific section. Of particular practical interest to employers, the guidance includes the following:

  • Temperature Checks Are Now Permitted – The EEOC considers these to be medical examinations; under the current situation, however, it states that employers may measure employees’ temperatures. The results are a medical record that must be kept confidential.
  • Employers May Ask If Employees Are Experiencing Symptoms of COVID-19 (i.e. fever, chills, cough, shortness of breath, or sore throat) – Such information is critical for the employer to know in order to protect others in the workplace. Again, any information obtained in response must be treated as confidential medical information.
  • Employers May Require Employees to Stay Home if they have such symptoms.
  • A Doctor’s Return to Work Note May Be Required – The EEOC cautions, however, that many doctors’ offices may be too busy to provide such fitness for duty documentation, and urges “new approaches” such as “reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.”
  • Reasonable Accommodations Must Continue – Employers must continue to work with individual employees with disabilities to provide reasonable accommodations to enable them to perform the essential functions of their jobs or to enjoy the privileges and benefits of employment. The EEOC recognizes, however, that under the current circumstances, there may be delays in the normal interactive process. It encourages employers and employees to use interim solutions to enable the employees to continue working.
  • Hiring During the COVID-19 Pandemic – According to the EEOC, employers may screen applicants for COVID-19 symptoms and exposure and take their temperature after a conditional offer of employment has been made, as long as it does so for all entering employees in the same type of job. Employers may also delay the start date, or even withdraw a job offer, if the applicant has COVID-19 and cannot start work immediately if required.

This relaxation of the normal restrictions on medical examinations and inquiries is useful during the current crisis. Employers should be aware that, when the crisis eases, the rules will return to their normal state. As this situation continues to fluctuate, employers should continue to pay attention to these shifting rules in order to ensure compliance.