COVID-19 & Your Business: Frequent Questions

What limitations does the Americans with Disabilities Act place on my company’s ability to attempt to contain the spread of COVID-19 in our workplace?

Generally, the Americans with Disabilities Act (ADA), protects applicants and employees from disability discrimination. The ADA also regulates disability related inquiries and medical examinations for applicants and employees. Additionally, airlines must comply with the Air Carrier Access Act (ACAA), which prohibits discrimination on the basis of disability in air travel.

In 2009, the U.S. Equal Employment Opportunity Commission (EEOC) issued a guidance document that addresses steps an employer should take to avoid violating disability laws in the face of a pandemic. The EEOC has recently updated this guidance to address concerns and questions relating to COVID-19.

Disability-related inquiries or medical examinations are allowed under the ADA if they are job-related and consistent with business necessity. It is important to note that medical examinations are not limited only to visits with a healthcare professional, but also include any procedure or test that seeks information about an employee’s physical or mental impairment or health – so, a medical examination could be something as simple as a measurement of an employee’s body temperature.

To meet the job-related and business necessity standard, an employer must have a reasonable belief based on objective facts that the employee’s ability to perform the essential functions of the employee’s job will be impaired, or that the employee poses a direct threat due to a medical condition. A direct threat is defined as “a significant risk of substantial harm to the health or safety of that employee or others, which cannot be eliminated or reduced by a reasonable accommodation.”

In a recent update to its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance document, the EEOC stated, “Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard.” This designation permits employers to measure the body temperature of all employees coming into the workplace. Employers may also ask all employees entering the workplace if they have COVID-19 or symptoms associated with COVID-19 (cough, sore throat, fever, chills, and shortness of breath), or if they have been tested for COVID-19. Employers may exclude employees with COVID-19 or symptoms of COVID-19 from the workplace because their presence would pose a direct threat to the health and safety of other employees. Employers may also ask employees if they have had contact with anyone who has been diagnosed with COVID-19 or someone who has symptoms of the disease. Employers generally cannot ask the aforementioned questions of employees who are teleworking because there is no direct threat concern.

The EEOC has also stated that employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Per the EEOC’s guidance, the employer must ensure that any COVID-19 test used is both accurate and reliable. Unlike COVID-19 testing, however, employers cannot require coronavirus antibody testing before employees return to work. The EEOC has taken a position similar to the CDC’s, which says that the presence of antibodies cannot be equated with a worker’s immunity from COVID-19.

If an employee refuses to allow an employer to take his/her temperature, refuses to answer questions relating to whether they have COVID-19 or symptoms associated with COVID-19 or if they have been tested for COVID-19, or refuses to submit to a COVID-19 test, then, under the current circumstances, the employer is permitted to bar the employee from being in the workplace. If an employer wishes to ask only a particular employee questions regarding his/her exposure to COVID-19 or if the employee has symptoms of COVID-19, or if the employer wishes to take only a particular employee’s temperature, then the employer must have a reasonable belief based on objective reasons that the employer should only take that employee’s temperature or ask only that employee questions.

Employers should remain mindful that the results of fever screening and the answers to medical-related questions are subject to the confidentiality requirements of the ADA.

Last updated June 22

These materials are made available by Jackson Walker for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.