EEOC: CDC safety guidelines don’t violate ADA

Employers are free to ask employees and job applicants if they have symptoms of COVID-19, screen them for illness and make them stay home if they test positive, according to the EEOC.

A new technical assistance document says it is also permissible to withdraw or delay a job offer if an applicant shows signs of coronavirus infection.

In general, the EEOC says the ADA does not prevent employers from complying with coronavirus safety measures recommended by the Centers for Disease Control.

The EEOC guidance provides answers to questions about:

Disability-related inquiries: Employers can rely on advice from public health authorities without violating the ADA. Questions designed to determine if someone poses a health danger at work are permitted, as is taking an employee’s temperature. Employers may test employees for COVID-19. If employees become ill at work, employers may send them home to ensure co-workers’ safety.

Confidentiality of medical information: An employer may store all medical information related to COVID-19 in existing medical files, which the ADA requires storing separately from other HR files. Employers may disclose to health authorities the names of employees who test positive for COVID-19.

Hiring: An employer may screen job applicants for COVID-19 symptoms after making a conditional job offer, as long as it does so for all entering employees in the same type of job. It is permissible to delay a new hire’s start date or rescind a job offer if he or she has COVID-19 symptoms. It is not permissible to delay a start date or pull a job offer because a new hire is 65 or older or pregnant, both risk factors for COVID-19 complications. That remains an ADA violation.

Reasonable accommodations: The assistance addresses several issues related to keeping disabled employees safe. Inexpensive, easy-to-implement accommodations may protect vulnerable employees from coronavirus infection. Social distancing measures include designating one-way aisles and using plexiglass or other barriers to ensure minimum distances between customers and co-workers. Temporary restructuring of job duties, transfers to different positions or modified work schedules may permit disabled individuals to reducing exposure to others.

The guidance offers a nod to expediency during this health emergency, noting that “some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the interactive process.” The EEOC acknowledges that temporary accommodations may be required until the full ADA process can be completed.

Online resources Find the EEOC’s technical assistance document at tinyurl.com/EEOC-COVID-19-assistance. Find the CDC’s employer advice at www.cdc.gov/coronavirus/2019-ncov/community/index.html.

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