Update April 27: This blog has been updated to reflect additional EEOC guidance.
The Equal Employment Opportunity Commission (EEOC) has issued updated technical assistance to help employers address a number of workplace issues relating to COVID-19, and to reconcile guidance from the Center for Disease Control (CDC) and state and local public health authorities with employer obligations under EEO laws. Here are the key highlights.
COVID-19 Pandemic Medical Inquiries and Exams
Consistent with recommendations from the CDC about how to avoid further spread of the disease, the updated guidance clarifies that employers have discretion to inquire about COVID-19-related medical conditions and to take steps that ordinarily would not be allowed.
Specifically, employers may now:
- Ask employees who call in sick if they are experiencing symptoms identified as associated with COVID-19 by the CDC, other reputable medical sources;
- Take the temperatures of employees (e.g., at the beginning of each workday or shift);
- Require employees who are experiencing COVID-19 symptoms to leave the workplace; or
- Require a doctor’s note certifying fitness for duty after an employee returns to work after exhibiting COVID-19 symptoms. Other types of certifications may also suffice (e.g., a form or email certifying that the individual does not have COVID-19.)
Employers that collect and retain medical information related to COVID-19 must maintain that the information is in compliance with the ADA (in a medical file, stored separately from an employer’s personnel file).
On April 23, 2020, the EEOC again updated its technical assistance guidance to green light additional testing, beyond just taking temperatures. The updated guidance allows employers to administer COVID-19 testing upon employees "entering the workplace." This guidance is consistent with the ADA standard that mandatory medical tests for employees with COVID-19 are "job related" and tie to "business necessity" because the virus poses a "direct threat to the health of others."
Also consistent with ADA standards, employers should ensure testing is "accurate and reliable" and are advised to review any further updates from the CDC or other public health authorities about what is considered safe and accurate testing. The EEOC cautions employers that they must properly consider incidents of false positives or false negatives associated with a particular test. Finally, because testing only reveals an infection at a snapshot of time, employers are advised to continue to require employees to observe infection control practices, such as social distancing and regular handwashing.
Employers are still left with many unanswered questions. For example, the EEOC has not explained or clarified the meaning of the phrase, "upon entering the workplace." Nor has it addressed whether employers may administer serological (anti-body) testing. Employers need to continue to monitor EEOC updates, as well as updates from other federal and state agencies, to make sure their testing protocols are consistent with evolving legal standards.
For now, employers should consider consulting counsel if they wish to test employees at the workplace. Key questions include: (1) how frequently employers can require testing (e.g., at the start of every workday or shift?); (2) whether employers can require employees to self-test; and (3) whether employers must pay employees for time spent on required testing.
Employers should bear in mind that it is imperative to make sure any type of permissible medical testing is implemented on a consistent, impartial basis to avoid running afoul of best practices.
Employers are reminded that low-cost solutions are often available to provide protection against exposure to COVID-19 in the workplace, especially for employees with pre-existing conditions that may put them at higher risk from COVID-19. Among other things, employers should consider designating one-way aisles in stores or facilities, or using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible.
Employers should consider accommodations such as a temporary job restructuring, temporary transfer to a different position, or work schedule modification.
Other advice includes:
- In the event of urgent requests for accommodation or limited time to explore requests for accommodation, employers may choose to forego or shorten the interactive process by granting a temporary or interim accommodation and set an end date at which time the accommodation can be re-evaluated.
- To prepare for future accommodations, employers may ask employees with disabilities to request accommodations and begin the interactive process for accommodations that employees believe they may need when the workplace re-opens.
- In deciding whether a particular accommodation amounts an “undue hardship,” the sudden loss of income stream because of the pandemic is appropriate. But employers cannot simply reject accommodations because they will result in some costs; the employer must still weigh costs against capabilities and work with the employee to explore alternatives.
Pandemic-Related Harassment and Discrimination
The guidance recommends proactive measures to prevent discrimination and harassment, starting with explicit communication to the workforce that fear of the pandemic should not be misdirected toward individuals on the basis of national origin, race, or other prohibited basis. The guidance also directs employers to its anti-harassment policy tips and guides on harassment prevention.
Furloughs and Layoffs
The guidance provides no specific guidance regarding COVID-19-related furloughs and layoffs, but reminds employers that special rules apply when offering employee severance packages in exchange for a general release of all discrimination claims and provides a link to other EEOC technical assistance guidance.
Return to Work
As government stay-at-homes orders are lifted, the guidance reaffirms that the ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if they are necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.
Because guidance from the CDC and public health authorities has deemed COVID-19 a direct threat to health and safety, employers act consistently with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time and they do not engage in unlawful disparate treatment based on any protected characteristic.
While the EEOC’s guidance reminds employers that all of the EEO laws it enforces remain in effect during the COVID-19 pandemic, it also emphasizes that those laws do not interfere with or prevent employers from following guidelines made by the CDC or state and local public health authorities regarding COVID-19. Because its guidance permits employers increased discretion and flexibility to respond to the pandemic crisis and maintain workplace safety, it is critical that employers remain up to date on all EEOC updates to ensure they are meeting their obligations under rapidly changing conditions.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.