The U.S. Equal Employment Opportunity Commission (“EEOC”) recently updated their guidance relating to the COVID-19 pandemic on Thursday, addressing several additional FAQ in response to inquiries from the public. In the updated guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” the EEOC expands on its previous publication issued in March and based on guidance it issued in response to the H1N1 outbreak in March 2009.
The updated guidance addresses FAQs in the areas of disability-related inquiries and medical exams, the confidentiality of medical information, hiring and onboarding reasonable accommodations, pandemic-related harassment, and furloughs and layoffs.
Below is an update regarding what employers can and cannot do based on the EEOC’s update:
- Employers may keep a log of employees’ temperatures if they are conducting temperature checks (which were previously sanctioned as permissible by the EEOC in response to COVID-19).
- Employers must store medical information about employees in a separate file from the employee’s personnel file and limit access to this confidential information. The file may include statements by the employee that he/she has the disease.
- Employers may ask employees about other symptoms of COVID-19 than those previously identified by the EEOC such as nausea, diarrhea, and vomiting. Notably, the agency stated that employers can and should rely on the CDC and other public health authorities or medical sources for guidance on symptoms associated with the disease.
- Temporary staffing agencies or contractors supplying a workforce to an employer may notify the employer of a worker’s positive test and disclose the name of the worker, to enable the employer to determine if the worker had contact with anyone in the workplace.
- With respect to hiring and onboarding, employers cannot unilaterally postpone the start date or withdraw a job offer because of a prospective employee’s at-risk status to contract COVID-19, such as those who are 65 or older or pregnant. As with previous guidance, the EEOC strongly encourages employers and employees to work together to come to an agreement on alternatives, such as teleworking or postponing the start date.
- The EEOC noted that employees with pre-existing physical or mental disabilities may need accommodation, as their symptoms could be exacerbated by the effects of the pandemic. For example, the EEOC guidance acknowledges that those with preexisting mental health conditions such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic disorder may have difficulty due to the “disruption to daily life that has accompanied the COVID-19 pandemic.” The EEOC advises employers, as with any accommodation request, to “ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.”
- Reasonable accommodations should also be explored for employees who need to be at the workplace and may have preexisting disabilities. These may include “low cost solutions achieved with materials already on hand or easily obtained,” such as implementing one-way aisles and using plexiglass, tables or other barriers to ensure distance between customers and coworkers. As with hiring, the EEOC stressed that flexibility by both employers and employees is important in determining accommodations. Other solutions may include temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment.
- Employees needing accommodations only upon returning to the workplace should begin discussing those accommodations now with their employers, although higher priority can be given to discussing requests for accommodations needed while teleworking. Similarly, those employees who were already receiving an accommodation prior to COVID-19 may be entitled to an additional or altered accommodation, absent undue hardship.
- Employers are cautioned to reduce harassment risk by explicitly communicating to employees that fear of the pandemic cannot be “misdirected against individuals” based on any protected characteristic, including national origin or race.
- Employers conducting layoffs are reminded of ADEA, WARN, and other obligations in offering employees severance packages in exchange for releasing claims.
Notably, the guidance does not yet address a question many employers have as they start to think about transitioning employees back to the worksite, including whether conducting antibody testing of employees can be required for returning workers and what implications conducting such testing may have under the ADA, GINA, and privacy laws. Employers should expect further guidance from the EEOC relating to COVID-19. Please check back here for updates.