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EEOC adds ‘Return to Work’ advice to employers’ Covid-19 guidance

The US Equal Employment Opportunity Commission on Friday added a “Return to Work” section to its updated and expanded technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the Covid-19 pandemic.

The publication, “What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws [1]” expands on a previous publication that focused on the Americans with Disabilities Act and Rehabilitation Act, and adds a questions-and-answers section for anticipating return to work situations, making reasonable accommodations, and harassment.

Additions to the publication clarify the following return-to-work policies:

When may an ADA-covered employer take the body temperature of employees during the Covid-19 pandemic?

Generally, measuring an employee’s body temperature is a medical examination. Because the Centers for Disease Control and Prevention 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.

Does the ADA allow employers to require employees to stay home if they have symptoms of the Covid-19?

Yes. The CDC states that employees who become ill with symptoms of Covid-19 should leave the workplace. The ADA does not interfere with employers following this advice.

When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty?

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other healthcare professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

The publication [2] also includes information on disability-related inquiries and medical exams; confidentiality of medical information hiring and onboarding; reasonable accommodation; and pandemic-related harassment due to national origin, race, or other protected characteristics. It is available online [2].

Employers should remember that guidance from public health authorities is likely to change as the Covid-19 pandemic evolves, the EEOC advises. Therefore, employers should continue to follow the most current information on maintaining workplace safety.