What steps can employers take to screen employees for COVID-19 after government stay-at-home orders are lifted?
According to new EEOC guidance, while the ADA permits employers to make disability-related inquiries and conduct medical exams when job-related and consistent with business necessity, inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.
The guidance explains that a direct threat must be determined based on the best available objective medical evidence, such as guidance from the CDC or other public health authorities. Therefore, the ADA will not prevent screening that is consistent with advice from the CDC and public health authorities for that type of workplace at that time. Examples of permissible screening include taking temperatures and asking questions about symptoms (or requiring self-reporting) of all those entering the workplace. (The CDC recently posted information on returning to work by certain types of critical workers.) The guidance emphasizes that employers must not unlawfully discriminate against employees based on protected characteristics in making decisions related to screening and exclusion.
What may be required of employers for workers’ personal protective gear and infection control practices?
According to EEOC guidance, employers may require employees to wear protective gear, such as masks and gloves, and observe infection control practices, such as regular hand washing and social distancing protocols. Employers are cautioned to evaluate their obligations carefully if an employee with a disability needs a related reasonable accommodation under the ADA, e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs, or a religious accommodation under Title VII (such as modified equipment due to religious garb). In such cases, the employer should discuss the request and provide the modification or an alternative if it is feasible and would not create an undue hardship on the operation of the employer’s business.