On Friday, April 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance on COVID-19 issues and equal employment opportunity (EEO) laws. The easy to read Q&A format is necessary reading for essential employers whose physical workspaces remain open, and for employers contemplating re-opening plans or personnel changes. The EEOC’s guidance clarifies that EEO laws, such as the Americans with Disabilities Act (ADA), continue to apply during the pandemic, while recognizing that these laws should not interfere with applicable safety guidelines issued by the CDC and other agencies. Recent guidance addresses the following issues:
- Employee symptom questioning: Although the ADA generally restricts medical exams and disability-related inquiries, employers may ask employees if they are suffering from symptoms associated with COVID-19. Employers may “rely on the CDC, other public health authorities, and reputable medical sources” to determine what symptoms are relevant. As stated in previous guidance, employers are permitted to take and track employees’ body temperatures during the pandemic.
- Confidentiality of medical information: The ADA has always required that an employee’s medical information be kept separately from an employee’s personnel file to ensure limited access; COVID-19-related information is no exception. Generally, employers must keep the identity of COVID-19 positive employees confidential. But employers may disclose the identity of a COVID-19 positive employee to a public health agency (or if the employer is a staffing agency, to the employee’s assigned workplace).
- Hiring and onboarding: Employers may screen applicants for COVID-19 symptoms after making a conditional offer of employment, but must do so for all applicants. Employers may not make an adverse employment decision based on COVID-19 risk factors, such as advanced age or pregnancy – but may make reasonable accommodations (i.e., teleworking) for them. If an employer requires that an individual start work immediately but the employee is unable to do so because of COVID-19, the employer may rescind the job offer.
- Reasonable accommodations: Due to COVID-19, employees may require additional or different accommodations, just as employers may have different undue hardships. The principles of the “interactive process” still apply. Where an employee at high risk for COVID-19 must be present in the workplace to perform their job, consider “temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment” to promote collective health and welfare.
- Pandemic-Related Harassment: COVID-19 is not an excuse to harass or discriminate against anyone because of any protected characteristic, including race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. Employers should remind employees of equal opportunity law requirements, and expeditiously investigate any allegations of harassment or discrimination.
- Layoffs and Releases: COVID-19 does not change the requirement that releases waive employee rights pursuant to federal equal opportunity laws must be signed “knowingly and voluntarily.” Consideration and revocation periods required by the Older Workers Benefit Protection Act remain in effect.
- Returning to work: Use common sense. Employees may be screened for COVID-19, but cannot be treated differently based on protected characteristics. Work with employees to provide reasonable accommodations to requests related to protective gear or work duties, so long as it is not an undue hardship for the employer.
UPDATE: On April 23, the EEOC updated its rolling COVID-19 guidance to explicitly permit workplace administration of COVID-19 tests to returning employees. Tests are permissible under the Americans with Disabilities Act because “an individual with the virus will pose a direct threat to the health of others.” The EEOC further advised that “employers should ensure that the tests are accurate and reliable.”
The guidance certainly rings aspirational, at best. The EEOC provided no instruction on where to obtain COVID-19 tests, or how to independently certify their efficacy, apart from staying current with Food & Drug Administration and Center for Disease Control guidance. The guidance further acknowledges 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.”
To the extent your workplace has access to reliable testing, you may use it, but it is not a cure, and its utility is limited. Continue to exercise all due precautions to ensure your workplace is as safe as possible.
Prognosticators are expecting a boom in employment litigation as a result of COVID-19 related adverse employment actions. Applying current federal guidance now is essential to avoid legal liability later. The Murtha employment team is at the ready to provide specific advice.