As businesses reopen following the COVID-19 outbreak, employers face a conundrum—what medical information can they obtain from employees to prevent the spread of COVID-19 in the workplace without running afoul of the Americans with Disabilities Act (“ADA”)? According to guidance from the U.S. Equal Employment Opportunity Commission (“EEOC”), employers can do the following:
- Inquire if employees are experiencing symptoms of COVID-19, so long as the employer keeps the information confidential;
- Require employees to stay home if they have symptoms of COVID-19;
- Require employees who are returning to work to provide a doctor’s note certifying their fitness for duty;
- Take employee body temperatures; and
- Administer viral tests to employees to determine if they are actively infected with COVID-19 before allowing them to return to work.1
Employers should also be mindful of state-specific requirements that impact medical inquiries. For example, if your company takes employee body temperatures and is subject to the newly-enacted California Consumer Privacy Act (“CCPA”), then you must provide a CCPA-compliant notice to employees when collecting their temperatures. Overall, employers should actively monitor CDC recommendations, EEOC guidance, and state and local requirements to evaluate whether their inquiries are permissible.
1 Conversely, requiring antibody testing before allowing employees to return to work is not allowed under the ADA.