Employers faced with responding to the serious health threat created by COVID-19 are smart to proceed cautiously. While businesses scramble to react to ever-changing recommendations and new legislation related to the global pandemic, doing so is not without risk.

Fortunately, the Equal Employment Opportunity Commission (EEOC) has issued some guidance for employers worried about potential violations of the Americans with Disabilities Act (ADA) as they handle workplace COVID-19 concerns. Managers with essential businesses still operating, and those returning employees to the workplace after stay-at-home orders are lifted, should keep this advice in mind.

ADA Compliant Actions

The EEOC’s  “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” confirmed that employers can do the following without running afoul of federal law:

  • Ask employees if they have symptoms of COVID-19 (the answers must be maintained in a confidential record outside of the employee’s regular employment file)
  • Take employees’ temperatures
  • Send employees ill with COVID-19 symptoms home and require they stay there until asymptomatic
  • Request a fitness for duty doctor’s note for return (but this is not recommended in most cases as it may be difficult to obtain)
  • After a conditional job offer, screen the applicant for COVID-19 symptoms as long as doing the same for all in the same job
  • Withdraw job offers where a job applicant is needed to start immediately but tests positive for or has symptoms of COVID-19

Privacy Concerns

Clearing ADA hurdles is important, but employers must also remain diligent about privacy concerns by maintaining employee confidentiality and proper record-keeping. While important to make sure employees potentially exposed to an ill co-worker are informed, the name of an sick employee should remain confidential. Instead, employers can simply communicate that employees may have been exposed and that they should take reasonable precautions.

Importantly, some states have laws regarding the privacy of health-related information.  In California, for example, an employee must provide written authorization for certain disclosures of such information. Businesses should always err on the side of fundamental privacy rights and provide employees with notice and the opportunity to consent before disclosures are made.

To ensure your company is ADA compliant, contact any of our HR professionals at https://resourcingedge.com/contact-us/

 

Kim Freeman, JD, Director of HR Services
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