Update: March 18, 2020. Faced with an imminent shortage in COVID-19 testing kits, the Minnesota Department of Health recommends that individuals with symptoms of acute respiratory illness “stay home for at least 7 days, and for 3 days with no fever and improvement of respiratory symptoms—whichever is longer.” This is longer than the CDC’s current guidance. We recommend employers consult local public health authority guidance.
As businesses navigate the unprecedented waters surrounding COVID-19, some are considering using thermometers to screen employees and keep the workplace safe. But does the Americans with Disabilities Act (ADA) allow employers to check employees for a fever at the door? Right now, the answer is “yes.”
Generally, measuring an employee’s body temperature is a “medical examination” under the ADA. Absent meeting certain criteria, a medical examination could constitute a violation of the ADA. However, the EEOC last tackled this question more than 10 years ago during the outbreak of the H1N1 virus, and gave the green light in these circumstances. Specifically, the EEOC explained that if a pandemic illness becomes “more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009,” or “becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.”
If an employee reports to work with a fever or displays symptoms of COVID-19, the CDC advises employers to immediately isolate the employee and ask the employee to leave the workplace. When considering this scenario under the ADA, the EEOC opined that if the employee does not have a pandemic illness, but instead a seasonal cold or flu, the employee does not have a qualifying disability. If the employee has COVID-19, then the EEOC explained “the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.”
Finally, employers should carefully follow CDC guidance to determine when an employee can return to work after displaying symptoms of acute respiratory illness. The CDC currently recommends that “[e]mployees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4° F [37.8° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants).” As experts evaluate the situation, this recommendation could change.
Consistent with EEOC guidance, employers may request a fitness-for-duty certification or other documentation certifying an employee does not have COVID-19 before returning to work, but this might not be possible or practical. Indeed, the CDC is asking employers not to require doctor’s notes, due to increased demand on healthcare providers. “Regardless of the approach, there will likely be some gap in time during which the employee cannot report to work. In that case, employers could consider work-from-home arrangements, encourage employees to use existing paid leave, or provide additional paid leave for this purpose,” said Courtney Blanchard, a labor and employment attorney with Nilan Johnson Lewis in Minneapolis.