Over the past month, employers have been managing their businesses during a global pandemic while always keeping an eye on compliance with employment laws. To assist employers navigate these difficult issues, the U.S. Equal Employment Opportunity Commission (“EEOC”) recently supplemented its guidance for employers relating to COVID-19 and the Americans with Disabilities Act (“ADA”).
The updated guidance relates primarily to steps employers may take to ensure that its employees do not enter the workplace with COVID-19, and steps that employers must take to accommodate individuals at higher risk for COVID-19. The updated guidance can be found at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
An important thing to note is that the Equal Employment Opportunity (“EEO”) laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. For example, the CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace.
The following are some key updates from the EEOC guidance:
Testing and Medical Exams
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 an employee illness as a confidential medical record in compliance with the ADA. The EEOC confirmed that for the duration of the direct threat posed by the 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. Before administering any tests, employers should review guidance from the Center for Disease Control and Prevention, U.S. Food and Drug Administration, or other public health authorities to ensure that tests administered are accurate and reliable.
Confidential Medical Information
The EEOC guidance states that contractors and staffing agencies may disclose the identity of an employee with COVID-19 if they placed that individual in the employers’ worksite. Additionally, employers may disclose the name of an employee to a public health agency if they learn an employee has been diagnosed with COVID-19. Lastly, the EEOC reiterates that employers must keep any medical information (including any testing and employee temperature logs) separate and confidential from an employee’s personnel file.
Hiring and Onboarding
Generally, employers may delay or withdraw job offers to applicants that have COVID-19 or symptoms of it. However, the guidance is clear that employers may not postpone the start date or withdraw a job offer just because the individual has a greater risk from COVID-19 (such as pregnant individuals or individuals over the age of 65).
While COVID-19 itself is not considered as a disability, an employee may request an accommodation based on an existing disability that may put him or her at a greater risk of severe illness if diagnosed with COVID-19. In this instance, the employer should work with the employee to determine if there is a reasonable accommodation that will allow the employee to continue to work.
As with any accommodation request, employers may: 1) ask questions to determine whether the condition is a disability; 2) discuss with the employee how the requested accommodation would assist him or her and enable him or her to keep working; 3) explore alternative accommodations that may effectively meet his or her needs; and 4) request medical documentation if needed. For more information related to reasonable accommodation please see subsection D in the link below:
Discrimination in the Work Place
The EEOC guidance encourages employers to remind the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited basis. It is against the Federal EEO Laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information.
It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.
The attorneys at Reno & Zahm LLP continue to monitor COVID-19 related statutes, rules, regulations and guidance, and we will endeavor to provide regular updates when warranted. Please contact us with any questions. We are here to help you make it through these challenging times.