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 including a waiver of 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.

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 avoiding legal liability later.  The Murtha employment team is at the ready to provide specific advice.

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Photo of Salvatore G. Gangemi Salvatore G. Gangemi

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of…

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of trade secrets, restrictive covenants, breach of employment contract, fiduciary duty, and other work-related common law claims. Sal also counsels clients on day-to-day issues involving workplace management and administration, including requests for reasonable accommodation for disabilities, for family and medical leave, and wage and hour issues.  He conducts employment law training on a variety of topics, including sexual harassment prevention and wage/ hour compliance.  He also drafts employment policies and agreements, and assists clients in auditing worker classification practices and policies both in the context of the Fair Labor Standards Act and state laws governing independent contractor determinations.

Photo of Matthew K. Curtin Matthew K. Curtin

Matthew Curtin is a Partner in the Litigation Department, the Chair of the Privacy and Cybersecurity Practice Group and a member of the Labor and Employment Practice Group.

In Matthew’s cybersecurity practice, he advises clients on compliance with state, federal and international privacy…

Matthew Curtin is a Partner in the Litigation Department, the Chair of the Privacy and Cybersecurity Practice Group and a member of the Labor and Employment Practice Group.

In Matthew’s cybersecurity practice, he advises clients on compliance with state, federal and international privacy laws including the Health Insurance Portability and Accountability Act (HIPAA) and the General Data Protection Regulation (GDPR). Matthew is particularly interested in advising his clients concerning employment privacy matters. Matthew is a member of the International Association of Privacy Professionals.

In Matthew’s labor and employment practice, he has successfully represented employers of all sizes concerning a wide variety of claims before state and federal courts, the National Labor Relations Board, the Connecticut State Board of Mediation and Arbitration, the Connecticut State Board of Labor Relations, the Connecticut Commission on Human Rights and Opportunities, and other various administrative agencies.

Matthew has substantial experience with collective bargaining negotiations, labor arbitrations, and labor relations. He regularly counsels senior management and human resources professionals concerning employment contracts, employment policies, hiring and termination procedures, workplace investigations, and harassment and discrimination avoidance.

Matthew has significant experience representing businesses in litigation concerning trade secret theft, unfair competition, and breach of non-competition and non-solicitation agreements.

Photo of Patricia E. Reilly Patricia E. Reilly

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices…

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices, and business disputes. In addition to maintaining a thriving litigation practice, Tricia counsels clients on a variety of employment-related issues including hiring, firing, and discipline; wage and hour; state and federal FMLA; sexual harassment investigations and prevention; Title IX; pregnancy and disability accommodation; and avoidance of employment discrimination liability.

Tricia is listed as a leading Labor and Employment Lawyer in Chambers USA.  She is listed in Best Lawyers in America®, and in 2017, Best Lawyers in America® recognized her as “Lawyer of the Year”, New Haven, Litigation – Labor and Employment. Tricia is a member of the American Bar Association, the Connecticut Bar Association and the New Haven County Bar Association.  She received her B.A. from Wesleyan University and her J.D. from University of California, Berkeley School of Law.

Photo of Adam D. Friedland Adam D. Friedland

Adam D. Friedland is a member of the Firm’s Litigation Department and Labor and Employment Practice Group. He represents clients in a variety of commercial litigation disputes, and counsels on potential litigation risks associated with all aspects of labor and employment law, including…

Adam D. Friedland is a member of the Firm’s Litigation Department and Labor and Employment Practice Group. He represents clients in a variety of commercial litigation disputes, and counsels on potential litigation risks associated with all aspects of labor and employment law, including wage and hour, discrimination, post-employment restrictive covenant, and related claims.

Adam has successfully represented clients in state and federal court, administrative proceedings, and alternative dispute resolution forums from inception through resolution.