Pandemic’s ‘direct threat’ classification allows employers to take extraordinary actions

published in McAfee & Taft LINC Alert | March 20, 2020

As of March 19, 2020, the EEOC has confirmed that based on guidance from the Centers for Disease Control and other public health authorities, the COVID-19 pandemic meets the “direct threat” standard under the Americans with Disabilities Act. The Act specifically defines a “direct threat” as “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.”

With the coronavirus outbreak now meeting this standard, employers are permitted to do the following without fear of violating the ADA:

  • Send employees home who become ill with COVID-19 symptoms;
  • Ask employees who report feeling ill at work or who call in sick questions about their symptoms to determine if they have or may have COVID-19;
  • Measure employees’ body temperatures;
  • Require employees who have traveled (whether for business or for pleasure) to comply with CDC guidance before returning to work;
  • Require employees to stay home if they have symptoms of COVID-19 and not return to the workplace until they can satisfy the CDC’s return from home isolation test;
  • Encourage employees who may have a compromised immune system or other underlying health condition that would make them especially vulnerable to COVID-19 to speak with management or HR, even if they are asymptomatic;
  • Use interim solutions to address requests for reasonable accommodations until you can make time to handle increased accommodation requests;
  • If you are hiring, you may screen job applicants for symptoms of COVID-19 after making a conditional job offer, so long as you do so for all employees entering the same type of job, and you may delay the start date of an applicant who has symptoms or withdraw the symptomatic employee’s job offer if you need the applicant to start immediately;
  • Continue to follow recommendations of the CDC and state and local public health authorities as the situation evolves.

Do not hesitate to contact McAfee & Taft’s Labor & Employment Group for more information.