The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance applicable during the COVID-19 pandemic related to what federal agencies can and cannot do related to medical inquiries and examinations that during normal times may violate the Rehabilitation Act (which, like the Americans with Disabilities Act (ADA) in the private sector, makes discrimination against disabled individuals illegal).
For instance, during the pandemic, a federal agency may legally:
- Ask its employees who call in sick, as well as job applicants, if they are experiencing symptoms of COVID-19, including, but not limited to, fever, chills, cough, shortness of breath, loss of smell or taste, and gastrointestinal problems.
- Monitor the body temperature of employees before admission into a federal facility.
- Require federal employees to wear personal protective equipment.
- Adopt teleworking policies, and even require federal employees without telework agreement to telework.
- Require employees with symptoms of COVID-19 to leave the workplace and to provide a doctor’s note or other appropriate documentation to return to duty.
- Delay the start date of a new employee or even withdraw a job offer, if the individual may not safely enter the workplace because of COVID-19. However, an agency may not withdraw a job offer or unilaterally delay the start date of an employee who the Center of Disease Control has identified as at greater risk, such as individuals who are 65 years or older or pregnant women, but an may permit such individuals to telework or discuss with such individuals if they would like to postpone their start date.
Further, while agencies are required to maintain confidentiality of medical information related to COVID-19, including daily temperature check logs, such medical information must be stored separately from employees’ personnel files.
Agencies are permitted to disclose the name of employees found to have COVID-19 to a public health agency, and staffing agency or contractors may disclose the identity of an employee found to have COVID-19 to determine whether the employee had contact with anyone in the workplace.
Finally, the Rehabilitation Act requires agencies to provide reasonable accommodations for individuals with disabilities during a pandemic, unless such accommodation poses an undue hardship.
Agencies may not ask employees without symptoms of COVID-19 whether they have a medical condition that makes them especially vulnerable. However, employees with disabilities that put them at a higher risk for complications from COVID-19 may request reasonable accommodation to reduce their chances of infection.
Employees and the agency should engage in an interactive process to determine an appropriate accommodation, such as permitting telework. Where an employee’s job may only be performed in the workplace, other alternative accommodations that may meet an employee’s needs on a temporary basis may include implementing changes to the work environment, such as designating one-way aisles, using Plexiglas, tables, or other barriers to ensure minimum distances between persons wherever feasible and temporary job restructuring, such as temporary transfers of employees with disabilities and modifying the work schedules or shift assignments of with disabilities so as to minimize their interactions with other persons.
It is also important to note that employees with preexisting mental health conditions, such as anxiety disorder, post-traumatic stress disorder, or obsessive-compulsive disorder, may experience greater difficulties handling daily disruptions caused by the COVID-19 pandemic and may therefore require accommodations.
As with any request for accommodation, an employer should engage in an interactive process with such an employee who requests reasonable accommodation to identify an accommodation that will assist the employee and enable him or her to keep working, and the employer may request medical documentation of the employee’s disability, if needed.
The EEOC has provided information on its website regarding the COVID-19 coronavirus and EEO laws.
Louise Ryder is an Associate at the Federal Practice Group and has substantive experience in federal employment law.
