The ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.  To comply with the ADA and other privacy laws, employers may not, however, specifically disclose the identity of the infected employee or provide information that will allow other employees to identify the infected individual.

The following is guidance for employers as to what steps may be taken with respect to employees who have or may have the COVID-19 virus:

  • During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
  • Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.
  • The ADA allows employers to require employees to stay home if they have symptoms of COVID-19. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace.
  • When employees return to work, the ADA allows employers to require doctors’ notes certifying their fitness for duty.
  • If an employer is hiring, it may screen applicants for symptoms of COVID-19 as long as it does so for all entering employees in the same type of job.
  • An employer may take an applicant’s temperature as part of a post-offer, pre-employment medical exam.
  • An employer may withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it.
  • An employer may delay the start date of an applicant who has COVID-19 or symptoms associated with it.

For extended absences and for covered employers, an eligible employee who contracts COVID-19 is entitled to up to 12 weeks of unpaid job-protected leave pursuant to the FMLA. Similarly, leave is available under the FMLA to employees whose immediate family members become infected with the virus. It is important to keep the employee’s position open until the expiration of the statutory period or, circumstantially, if the employee resigns.

Steven P. Engel

Steven Engel has defended clients in legal disputes for three decades. He is a skilled litigator dedicated to achieving the best outcomes for his clients in every case he defends.