April 23, 2020

On April 23, 2020, the Equal Employment Opportunity Commission (EEOC) issued additional answers to frequently asked questions (FAQs) about how employers should comply with the Americans with Disabilities Act (ADA) while also observing all applicable emergency workplace safety guidelines during the coronavirus pandemic. The new FAQs were added to guidance that the EEOC previously issued on March 18, April 9, and April 17, 2020. The FAQs draw from the EEOC’s existing pandemic publication, Pandemic Preparedness in the Workplace and the ADA, to help employers navigate workplace issues related to the coronavirus (COVID-19). In particular, the EEOC’s FAQs include information from a section of the publication that answers employer questions about what to do after a pandemic has been declared. This HR Compliance Bulletin contains the EEOC’s updated FAQs. Employers are subject to the ADA if they have 15 or more employees. Smaller employers may be subject to similar rules under applicable state or local laws. All employers should follow the most current guidelines and suggestions for maintaining workplace safety, as issued by the Centers for Disease Control and Prevention (CDC) and any applicable state or local health agencies. Employers with 15 or more employees should also become familiar with and follow the guidance provided in the EEOC’s FAQs about ADA compliance. These and all smaller employers should ensure that they comply with state and local anti-discrimination laws as well. A. Disability-Related Inquiries and Medical Exams A.1. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic? During a pandemic, ADA-covered employers may ask 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. A.2. NEW AS OF APRIL 9, 2020: When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19? As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting. A.3. When may an ADA-covered employer take employees’ body temperature during the COVID-19 pandemic? 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. However, employers should be aware that some people with COVID-19 do not have a fever. A.4. May employers require employees to stay home if they have COVID-19 symptoms? Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice. A.5. When employees return to work, may an employer require doctors’ notes certifying their fitness for duty? Yes. These inquiries are permitted under the ADA either because they would not be disability-related or would be justified under the ADA standards for disability-related inquiries. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary. For example, employers could rely on local clinics to provide a form, stamp or e-mail to certify that an individual does not have the pandemic virus. A.6. NEW AS OF APRIL 23, 2020: May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require—to the greatest extent possible—that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19. B. Confidentiality of Medical Information B.1. NEW AS OF APRIL 9, 2020: May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information? The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in

On March 27, 2020, the Coronavirus Aid, Relief and Economic Security Act (CARES Act) was signed into law. In addition to providing direct financial assistance to Americans, the CARES Act repeals the Medicine Cabinet Tax provision of the Affordable Care Act (ACA), expanding the list of qualifying expenses that can be purchased with health savings accounts (HSAs). CARES Act and Qualifying Medical Expenses Under the CARES Act, the definition of a qualifying medical expense now includes certain over-the-counter (OTC) medications and products. Examples of expenses that are now eligible medical expenses under the CARES Act include, but are not limited to, the following: Allergy medicine Analgesics (e.g., vaporizing rub) Anti-diarrhea medicine Anti-gas, Antacid Antihistimines Anti-inflammatory medication Aspirin Bandages Burn treatments, OTC Calamine lotion Cold and flu medicine Cold sore remedies Cold/hot packs Condoms Contact lens solutions/cleaners Cotton balls (sterile) Cough drops, cough suppressants Decongestants Diaper rash treatments Elastic wraps Expectorants Eye drops (nonmedicated) Feminine hygiene products HSA Eligible Expenses Expanded Fiber laxatives First-aid kits Heating pads Hemorrhoid treatments Insect bite/sting medicine Medicated lip balm/cream Menstrual pain relievers Nicotine patches, gum and lozenges OTC pain relievers Pregnancy test kits Prenatal vitamins Reading glasses Stomach remedies Sunburn treatments Sunscreen Thermometers Throat lozenges/cough drops Please note, this list is not all-encompassing. For more information on your medical spending account, please contact your plan administrator.