León Cosgrove

COVID-19, Medical Inquiries, and Testing: What Actions Can Employers Take Without Running Afoul of the ADA?

By: Tiffany L. Anderson

As businesses reopen following the COVID-19 outbreak, employers face a conundrum—what medical information can they obtain from employees to prevent the spread of COVID-19 in the workplace without running afoul of the Americans with Disabilities Act (“ADA”)?   According to guidance from the U.S. Equal Employment Opportunity Commission (“EEOC”), employers can do the following:

  • Inquire if employees are experiencing symptoms of COVID-19, so long as the employer keeps the information confidential;
  • Require employees to stay home if they have symptoms of COVID-19;
  • Require employees who are returning to work to provide a doctor’s note certifying their fitness for duty;
  • Take employee body temperatures; and
  • Administer viral tests to employees to determine if they are actively infected with COVID-19 before allowing them to return to work.[1]

Employers should also be mindful of state-specific requirements that impact medical inquiries.  For example, if your company takes employee body temperatures and is subject to the newly-enacted California Consumer Privacy Act (“CCPA”), then you must provide a CCPA-compliant notice to employees when collecting their temperatures.  Overall, employers should actively monitor CDC recommendations, EEOC guidance, and state and local requirements to evaluate whether their inquiries are permissible.

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[1] Conversely, requiring antibody testing before allowing employees to return to work is not allowed under the ADA.