Do You Have a Fever: Preparing for a Pandemic Without Violating the Americans with Disabilities Act
Stites & Harbison Client Alert, March 10, 2020
Employers are now dealing with the very real possibility of a coronavirus pandemic in the United States. When an “epidemic” becomes global, it becomes a “pandemic.” Employers need to develop plans now for effectively responding to employee concerns in the event of a pandemic. The Centers for Disease Control and Prevention (“CDC”) provides guidance for employers to plan and respond to a pandemic from a healthcare perspective; however, when implementing this guidance, employers must also be aware of their legal obligations to employees under the Americans with Disabilities Act (“ADA”). The ADA protects applicants and employees from disability discrimination, including disability related inquiries and medical examinations from employers.
Employers should begin their pandemic preparation by identifying a team or coordinator to be responsible for preparedness and response. At least one of the team members, such as someone in HR, should have experience with equal employment opportunity laws. Why? Well, for example, there might be a proposal to ask employees to disclose personal medical information such as do they have a compromised immune system or a chronic health condition that the CDC says could make the person more susceptible to complications from coronavirus. However, this type of inquiry is prohibited under the ADA if it could lead to the disclosure of a disability. To avoid potential ADA violations, do not ask employees about medical or chronic health conditions.
So, if employers are prohibited from making such inquiries, is there an ADA compliant way to identify which employees are more likely to be unavailable for work during a coronavirus pandemic? The answer is yes. There are ways that an employer may make inquiries that are not disability related, that will assist in identifying possible staffing needs or issues during a pandemic. The inquiries must be designed to identify potential non-medical reasons for absences during a pandemic. For example, an employer can ask its employees whether they need to stay home to care for a child if schools or daycare centers are closed or, if they will be unable to travel to work if public transportation is unavailable. Asking these non-medical questions help employers gather information that will help anticipate and plan for staffing shortages in the event of a pandemic.
Can employers send employees home if they display coronavirus-like symptoms without violating the ADA? Yes. An employer may require employees to go home, as long as the symptoms are akin to the seasonal virus or to the coronavirus, which is a temporary virus, and not a disability-related action. However, an employer should not ask to take an employee’s temperature to determine whether they have a fever, as this may violate the ADA. Generally, measuring an employee’s body temperature is considered a prohibited medical examination. In addition, there may be individuals who have coronavirus who are asymptomatic, and may not have a fever.
The EEOC Compliance Manual provides guidance for pandemic preparedness in the workplace and the Americans with Disabilities Act. This guidance provides an additional overview and examples of inquiries or practices during a pandemic which may be a violation of the ADA. If you have any additional questions, please reach out to one of the attorneys in our employment group.