In response to the COVID-19 outbreak, the EEOC has issued guidance regarding the Americans with Disability Act, as amended (the “ADA”) in relation to pandemic issues faced in the workplace. The guidance is available here. Below is a distillation of the EEOC’s guidance.

Employers may require employees displaying influenza-like symptoms to stay home. Employers can ask about general symptoms but must avoid asking “medical questions.” Employers are also reminded to maintain all such medical information as confidential in compliance with the ADA.

Measuring employees’ body temperature is allowed. However, employers are forbidden from asking employees whether they have any medical conditions that could make them especially vulnerable to influenza complications. Additionally, if an employee voluntary discloses that he or she has a medical condition rendering him vulnerable to increase risk of influenza complications, such information should be kept confidential.

The EEOC reminds employers they may make steps to control or slow the spread of infections, which include:

  • Consider allowing employees to work from home if possible;
  • Requiring infection control practices, such as washing hands and practicing social distancing; and
  • Requiring employees to wear protective equipment as long as it does not interfere with a disability.

As a point of clarity, the pandemic does not excuse employers from providing their employees with reasonable accommodations for disabilities unrelated to the pandemic. For example, if an employee has an accommodation at the office and is asked to work from home, the employer should be prepared to offer the same accommodation at the remote worksite, absent undue hardship.

Finally, while a vaccine is not currently available, an employee may be exempted from mandatory vaccination requirements if he or she has a disability preventing him from taking the vaccination. Likewise, an employer cannot compel an employee to receive a vaccination in contravention of an employee’s closely held religious belief that prevents him from taking a vaccine.

About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.

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