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Under COVID-19, How Can Employers Comply with the ADA’s Requirements?

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The Equal Employment Opportunity Commission (EEOC) is the agency tasked with enforcing federal employment discrimination laws, commonly referred to as the Equal Employment Opportunity laws (EEO laws). One such law is the Americans with Disabilities Act (ADA). Generally speaking, the ADA prohibits discrimination on the basis of disability in employment, public accommodations, and government programs, services and activities.

The focus of this blog post is how employers can comply with the ADA’s requirements concerning disability-related inquiries and medical examinations while taking steps to ensure the safety of the workplace during the COVID-19 pandemic. The EEOC’s recently issued guidance in this area is summarized below. For more information, you can review the EEOC’s guidance here and here.

What are the ADA’s general requirements?

Generally, the ADA prohibits employers from making disability-related inquiries and requiring medical examinations of employees, although there are limited exceptions.

  • A "disability-related inquiry" is one likely to elicit information about a disability. For example, asking an individual if his immune system is compromised is a disability-related inquiry because a weak or compromised immune system can be closely associated with conditions such as cancer or HIV/AIDS.
  • An ADA "medical examination" is a procedure or test that seeks information about an individual’s physical or mental impairments or health. Whether a procedure is a medical examination under the ADA is determined by considering whether the test involves medical equipment, whether it is invasive, whether it is designed to reveal a physical or mental impairment, and whether it is given or interpreted by a medical professional.
  • For prospective employees, the ADA prohibits employers from making disability-related inquiries and conducting medical examinations before a conditional employment offer is made. After such an offer is made, however, an employer may make disability-related inquiries and conduct medical examinations if all entering employees in the same job category are subject to the same inquiries and examinations.
  • For existing employees, the ADA prohibits disability-related inquiries or medical examinations unlessthey arejob-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer reasonably believes, based on objective evidence, that (1) an employee’s medical condition will impair performance of essential job functions or (2) an employee will pose a direct threat due to medical condition (for more on the ADA’s “direct threat analysis, see Part 3 of this blog coming soon). This reasonable belief "must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination."

All information obtained through disability-related inquiries or medical examinations must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.

Can employers ask employees about their health and symptoms during COVID-19?

Yes. Employers may ask such question when they screen employees as they come into the workplace and when employees call in sick. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Additional symptoms may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace.

An important distinction: before or after a pandemic occurs, an employer cannot ask employees to disclose conditions that would make them high risk should a pandemic start. For example, asking an employee to disclose whether they have a compromised immune system or a chronic health condition is a disability-related inquiry, and the ADA does not permit such an inquiry without objective evidence that pandemic symptoms will cause a direct threat. Such evidence is completely absent before a pandemic occurs.

Can employers check employees’ temperatures?

Yes. While measuring an employee's body temperature is a medical examination, employers may measure employees' body temperature because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions regarding temperature levels. However, employers should be aware that some people with COVID-19 do not have a fever. The CDC has issued guidance that includes several different procedures for employers to check employee temperatures safely in the workplace. You can review these procedures here.

Can employers require employees to stay home if they have COVID-19 symptoms?

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

Can employers require a doctor’s note certifying an employee’s fitness for duty before allowing the employee to return to work?

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

Can employers administer COVID-19 tests before allowing employees to enter the workplace?

Yes. The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable and may review guidance from the U.S. Food and Drug Administration here about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates.