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Workplace Anti-Bias Agency Eases Medical Exam Guidance for Virus

March 18, 2020, 8:14 PM

Employers can ask job applicants if they have symptoms consistent with the novel coronavirus, take their body temperatures after making a conditional job offer, and delay a start date or even withdraw a job offer if an individual is exhibiting symptoms, according to new Trump administration guidance.

The Equal Employment Opportunity Commission on Wednesday updated online resources for U.S. businesses grappling to balance compliance with federal anti-discrimination laws and efforts to limit the spread of the disease caused by the virus, Covid-19. The guidance focuses on the Americans with Disabilities Act and the Rehabilitation Act, allowing for more drastic measures while still ensuring workplaces are taking safety considerations into account, as 6,954 cases have been detected in the U.S. as of noon Wednesday, and are predicted to rise. Employers also must comply with the Occupational Safety and Health Act, which requires employers to provide a safe workplace, free from hazards.

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

The ADA restricts the circumstances in which employers can mandate medical exams and ask about workers’ health. Key to the change is the official warnings from the World Health Organization declaring an international pandemic, as cited on the agency’s updated site.

Ohio Gov. Mike DeWine (R) asked all employers still open in his state on Wednesday afternoon to immediately begin taking the body temperature of employees before they enter the workplace.

Past Pandemic Approaches

The EEOC previously issued a pandemic preparedness guide during the 2009 H1N1 influenza outbreak that warned companies to be careful when requesting information from an employee who calls in sick. The guidance also dictated when employers can start taking workers’ body temperatures during a pandemic, and whether they can request health information from employees with virus-like symptoms.

The agency said in the previous guidance that there have been four influenza pandemics in the last century: The deadly “Spanish flu” of 1918 was followed by the milder “Asian” and “Hong Kong” flu epidemics in the 1950s and 1960s. The SARS outbreak in 2003 was considered a pandemic “scare,” but the H1N1, or the swine flu, rose to the level of a pandemic.

Given the extenuating circumstances, employers can request information from hires about whether they have the virus, and require tests, the EEOC said. Courts have grappled with legal questions in the past about whether an employer can fire or refuse to hire a worker who has the potential to carry a virus or have a disorder that would be covered under disability protections.

Litigation History

The EEOC has previously argued that a worker doesn’t have to have a current physiological disorder to be protected under the ADA. However, at least five federal appeals courts have confronted this issue and ruled for the employers, providing latitude in hiring and firing of workers for potential disabilities.

That includes the U.S. Court of Appeals for the Eleventh Circuit , which ruled against the EEOC in a case against STME LLC, a company that owned a Massage Envy location in Florida. The appeals court in September ruled that the agency couldn’t press disability bias claims on behalf of a massage therapist who was fired for refusing to cancel a trip to Ghana because her employer feared she would contract the rare but deadly Ebola virus. Likewise, the court ruled that the ADA doesn’t protect against discrimination based on the perception of a potential future disability.

In the Massage Envy case, the EEOC said its position is that ADA’s protections apply to the worker because of a provision prohibiting discrimination based on a worker’s association with an individual with a disability. That would include situations such as an employer firing someone who volunteered with people who had AIDS, the agency unsuccesfully argued.

The EEOC itself recently has encouraged its workforce of about 1,900 employees to telework until further notice, several days after its Washington, D.C. headquarters and field office were shuttered in response to a worker exhibiting symptoms consistent with the disease caused by the virus.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com