As we reach the half-year mark of the pandemic state of emergency, government agencies continue to regularly add new and updated COVID-19-related guidance for employers to follow as they navigate keeping businesses open during these unprecedented times. This week, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19-related guidance. This update is significant as the EEOC chose to add to or update 20 of its frequently asked questions, focusing mainly on questions employers may ask their employees as employers continue their infection control measures while providing additional guidance on COVID-19 testing.
In previous guidance, the EEOC advised that the Americans with Disabilities Act (ADA) permits employers to administer COVID-19 testing to its employees if the employer determines that an employee’s presence in the workplace poses a direct threat of harm to the workforce. The updated guidance reiterates this position but also provides additional flexibility to employers. The EEOC states that the ADA doesn’t prohibit an employer from following Centers for Disease Control and Prevention (CDC) recommendations, emphasizing how important it is for employers to stay up to date on CDC testing guidance.
The EEOC provides a series of scenarios addressing what questions an employer may ask related to COVID-19 and advises that under the ADA, employers may:
- Ask all employees that are physically entering a workplace if they have COVID-19; have symptoms of COVID-19; or have been tested for COVID-19. Employers may not ask these same questions of employees teleworking and isolated from other employees.
- Ask individual employees if they have COVID-19 symptoms; or ask individual employees to undergo temperature or testing screening only if they have a reasonable belief the employee may have the disease.
- Not ask an employee medical questions about the employee’s family members, but may ask general questions about potential exposure to COVID-19.
- Ask an employee why the employee was absent from work.
- Ask employees returning from travel whether the employee is returning from a location that the CDC, or state or local public health officials, determine requires a period of isolation.
Policies and Procedures Regarding Receiving and Storing Employee Medical Information
Because COVID-19 has created competing privacy and health and safety issues, the EEOC provides some guidance to employers on how to approach different difficult workplace scenarios. For instance, the EEOC advises that the ADA doesn’t prohibit an employer from discipling or excluding an employee from the workplace because the employee refused to submit to symptom screening. However, the EEOC encourages employers to ask for further general information from the employee as to why they’re refusing because the employee may request a reasonable accommodation.
The EEOC also provides additional guidance on disclosing medical information within the workplace. For example, although the ADA requires that an employer keep all medical information private regardless of whether it’s a disability, supervisors and employees who learn of an employee’s COVID-19 symptoms or diagnosis may still disclose that to the appropriate employer official who needs to know so that the employer can take infection control measures. The EEOC reiterates that this information should be kept strictly confidential to the maximum extent possible and only those with a need to know to implement infection control measures should know this information.
Lastly, because many are working remotely, a lot of private information is being passed digitally. Employers need to ensure the security of this information so that only those with a need to know the medical information has access to it, and that any medical information the employer receives about an employee is stored away from an employee’s personnel file.
The EEOC addresses some new issues in reasonable accommodations that have arisen since the pandemic started. One of the key questions is whether employers will be required to provide telework as a reasonable accommodation moving forward if an employer provided a temporary teleworking arrangement during COVID-19.
The EEOC advises that an employer will not be automatically required to do so but will need to evaluate whether the individual circumstances make it such that it’s reasonable and that it doesn’t cause an undue hardship. The temporary teleworking arrangement created by COVID-19 could serve as a means for an employer to evaluate whether certain positions can be performed remotely when, in the past, an employer believed a position was not suitable for remote working. The EEOC reminds employers to continue to engage in good faith interactive processes and lean toward being as flexible as possible during the pandemic, and beyond.