EEOC loosens employer medical examination guidance for COVID-19 outbreak

Wednesday, 18 March 2020

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In a little-noticed posting on its website, the Equal Employment Opportunity Commission (EEOC) this week provided some relief to employers from their ordinary obligations to avoid activities that might constitute a "medical test." Typically, employers in the United States covered by the Americans with Disabilities Act (ADA) are required to refrain from conducting "medical examinations" of their employees except under certain limits set out in ADA regulations. Some of these exceptions include—

Post-offer medical examinations that are justified by business necessity.
Fitness-for-duty examinations of employees who appear to be medically unable to perform the essential functions of their position, with or without reasonable accommodation.

Under the traditional definition of "medical examination," taking an employee's temperature would count. That said, many medical providers, group homes, daycare facilities, schools, airlines, and even ordinarily businesses have been under pressure to screen employees for potential symptoms of COVID-19 to avoid infecting others within the workplace. The EEOC, in a rare stroke of common sense, has issued guidance finding that such reasonable measures are appropriate and not a violation of the ADA during the course of this pandemic.

According to the EEOC's guidance, "During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA."

Furthermore, the EEOC has advised employers that notwithstanding the general rule, "[b]ecause the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever."

To answer some additional questions that have apparently been posed to the agency in recent days, the EEOC states that it is acceptable for employers to mandate that workers with COVID-19 symptoms "leave the workplace," and it confirms that "the ADA does not interfere with employers following this advice." Finally, the EEOC has issued practical advice on fitness-for-duty examinations, noting that during this time, fitness-for-duty examinations for those suspected of COVID-19 are in theory permissible, but medical providers may be backed up. Without saying as much, the EEOC almost seems to endorse mandatory leave for those with symptoms since the medical system will be ill-prepared to examine all questionable employees.

All of this is helpful news for employers attempting to stay afloat amid all of the confusion and concern brought by the pandemic. To this, I would merely add that employees should be careful to not get beyond what the EEOC has permitted above. There are other laws beyond the ADA that prevent employers from delving too deeply into their employees' private lives. One of the most notable ones is the Genetic Information Nondiscrimination Act. That law, commonly referred to as GINA, prohibits employers from seeking, accepting or otherwise gaining on purpose any "genetic information" about employees. Employers should be careful to avoid any medical inquiries designed to elicit genetic information, which the EEOC defines as "information about an individual's genetic tests and the genetic tests of an individual's family members, as well as information about the manifestation of a disease or disorder in an individual's family members (i.e. family medical history)."

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