As some states are beginning to reopen for business, new legal issues are developing, such as those involving employees who fear returning to work and the implementation of modified disaster recovery plans. Among the more persistent questions: What types of medical questions can employers require employees to answer upon returning to work?

Here we address that question, together with the EEOC’s new guidance on accommodating employees at high risk of serious illness or morbidity from COVID-19.

The Pre-COVID Baseline

The ADA (Americans with Disabilities Act) generally prohibits employers from making disability-related inquiries and requiring medical examinations - with three exceptions.

Exception #1: Job Accommodation.  The employer needs medical documentation to support an employee's request for an accommodation.

Exception #2:  Job Performance.  The employer reasonably believes that an employee is not able to perform the essential functions of his/her job.

Exception #3: Direct Threat.  The employer reasonably believes that the employee poses a “direct threat” due to a medical condition.

COVID-19 as a “Direct Threat”

A "direct threat" is "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." 

That now includes COVID-19 exposure.  EEOC guidance provides that “a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”  Direct threat is the legal fulcrum point for expanded employer inquiries.

And so - the EEOC (Equal Employment Opportunity Commission) has somewhat relaxed its general restrictions on disability-related inquiries and medical exams in the following ways.

Temperature Screening 

Ordinarily, measuring an employee's body temperature is considered a medical examination, so it could only be done if it is “job-related and consistent with business necessity.” However, during the pandemic, employers are currently permitted to measure employees’ body temperature without violating the ADA.

We previously covered best practices for employers to consider when pursuing temperature testing to ensure compliance with applicable legal rules. For example, the fact that an employee had a fever or other symptoms is subject to ADA confidentiality requirements.

Mandatory COVID-19 Testing

Also, as previously discussed, employers may mandate diagnostic COVID-19 employee testing (currently via nose swab) before workplace entry. However, because the EEOC guidance warns that employers should ensure the tests are accurate and reliable, it appears that mandatory serology (antibody) testing may not be allowed at this time.

Providing access to voluntary antibody testing for employees appears to be permissible. As our understanding of COVID-19 continues to evolve, we may see employers wanting to implement other new types of testing as well, such as oxygen saturation screening, which the EEOC has not yet addressed.

Symptom Inquiries 

During the current pandemic, when employees report feeling ill at work, or call in sick, employers may ask questions about their symptoms to determine if they have or may have COVID-19.

Currently, these symptoms include fever, chills, cough, shortness of breath, or sore throat - but the list is growing. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Mandatory Accommodation for High-Risk Employees?

The latest EEOC guidance is for reasonable accommodations of employees who have pre-existing medical conditions - where those conditions per the CDC may put them at “higher risk for severe illness” from COVID-19.

The EEOC’s new position is that an employer cannot bar an employee from the workplace solely because of an underlying medical condition. Barring at-risk employees is not allowed unless the employee’s disability poses a “direct threat” to his/her own health that cannot be eliminated or reduced by reasonable accommodation.

Per the EEOC, this “determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence.”

And, even then, where the employee’s disability poses a direct threat to his/her own health, the employer still cannot exclude the employee from the workplace or take any other adverse action - unless there is no other manner to reasonably accommodate the employee, including by possibly altering their job responsibilities. 

The latter question is hard.  How do employers accommodate an employee at high risk of serious illness or death, given the level of contagion of COVID-19?  Working remotely will work for some - it is baked into the culture now and for the foreseeable future.  For others, whose jobs require physical presence, such accommodations will require genuine creativity - and robust workers’ comp coverage.