EEOC Issues Guidance and Sample Questionnaire on Coronavirus

Miller & Martin PLLC Alerts | March 05, 2020

UPDATE:  As of March 11, 2020, the World Health Organization has declared the COVID-19 outbreak a pandemic.

EEOC Pandemic Influenza Guidance

As concerns over the COVID-19 Coronavirus continue to dominate the news cycle and the workplace, the Equal Employment Opportunity Commission (EEOC) has issued a technical assistance resource that attempts to answer many concerns raised by employers struggling to properly respond to concerns over a proper response and precautions to be taken in light of the current pandemic. The guidance document was originally issued in 2009 in response to the H1N1 outbreak, but remains relevant to the current concerns relating to the COVID-19 outbreak.

The EEOC has primary enforcement jurisdiction over the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The ADA protects applicants and employees from discrimination based on actual and perceived disabilities. The 2009 Guidance offers many answers to questions now being faced by employers around the country. The full text of the guidance can be found on the EEOC website. The technical assistance document does not have the effect of law, but represents the EEOC’s position on what the law requires and, more importantly, allows in light of recent Coronavirus precautions.

Here are some highlights which answer some of the most common questions being raised today:

  • During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?

    - Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.

  • May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?
    • Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.

 

  • During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?
    • Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature. However, employers should be aware that some people with influenza, including the 2009 H1N1 virus, do not have a fever.

 

  • When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?
    • No. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.

 

  • May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?
    • Yes. Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation. The sample questionnaire provided below is recommended by the EEOC to help identify employees who may not be able to come to work in the event the virus continues to spread without running afoul of the ADA, etc.

 

As of March 3, 2020, the CDC had not recommended the imposition of any travel restrictions within the United States. However, the situation continues to be aggressively monitored and all employers are encouraged to remain vigilant with infection control measures and the evaluation of the need for international travel and possible quarantine (from the workplace of personnel who have traveled to Level 2 or Level 3 global destinations as of March 3, 2020, these would include China, Iran, South Korea, Italy and Japan). Access the CDC’s Coronavirus website here.

The EEOC’s guidance contains practical advice and answers (from a regulatory perspective) of many questions now being asked. Employers should utilize common sense and evaluate circumstances unique to their work environment. Contingency planning for office interruptions relating to pandemics or natural disasters should be revisited an updated with a clear communication plan in place. This includes encouraging employees to make daily preparations for work interruptions in the event circumstances change quickly.

If you have any questions relating to concerns over COVID-19 or related issues, feel free to contact a Miller & Martin Labor and Employment attorney.

 

 SAMPLE QUESTIONNAIRE

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