The EEOC Updates Its Guidance Regarding COVID-19

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Patricia Tsipras

September 18, 2020

Last week, the Equal Employment Opportunity Commission (EEOC) revised its guidance regarding COVID-19 inquiries, confidentiality, and reasonable accommodations.  We have summarized the key take-aways below.

Disability-Related Inquiries
The EEOC answered Yes to the question of whether an employer may administer a COVID-19 test to evaluate an employee’s initial or continued presence in the workplace.  The Americans with Disabilities Act (ADA) requires that any mandatory medical test of employees be “job related and consistent with business necessity.”  Because an employee with COVID-19 would pose a direct threat to the health of others, employers may screen employees entering the workplace.  Administering tests consistent with the current guidance of the Centers for Disease Control and Prevention (CDC) meets the ADA’s business necessity standard.  See question A.6.

The EEOC also answered Yes to the question of whether employers may ask all employees who physically enter the workplace if they have been diagnosed with or tested for COVID-19.  An employer may exclude those with COVID-19 or its symptoms from the workplace because their presence would pose a direct threat to the health and safety of others.  However, employers may not ask those questions to teleworking employees because they are not physically interacting with other employees or customers.  See question A.8.

 The EEOC stated that, for an employer lawfully to ask only one employee questions to determine if s/he has COVID-19, or to require only one employee to undergo screening or testing, the employer must have a reasonable belief based on objective evidence that the employee might have the disease.  See question A.9.

The EEOC reminded employers that the Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members.  GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with COVID-19.  See question A.10.

The ADA allows an employer to bar employees from being physically present in the workplace if they refuse to have their temperature taken or refuse to answers questions designed to determine whether they have COVID-19, symptoms of COVID-19, or have been tested for COVID-19.  See question A.11.

It is perfectly acceptable to ask an employee why s/he did not report to work.  Such inquiry is not a prohibited disability-related inquiry.  See question A.13.

Questions about where a person traveled likewise are not disability-related inquiries.  If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period, an employer may ask whether employees are returning from these locations, even if the travel was personal.  See question A. 14.

Confidentiality
Though the fact that an employee has COVID-19 or has symptoms associated with the virus is medical information, it is not a violation of the ADA’s confidentiality provisions for a supervisor or a coworker to report that information to appropriate representatives of the employer on a need-to-know basis.  Such a report allows the employer to take action consistent with guidance from the CDC or other public health authorities.  See questions B.5 and B.6.

If an employee is teleworking or is on leave because of COVID-19, COVID-19 symptoms, self-quarantine, or another medical condition, an employer may advise other employees, who need to know how/whether they can contact the coworker, of the teleworking arrangement or leave, as long as the employer does not disclose the reason for the teleworking arrangement or leave.  See question B.7.

Supervisors who are teleworking still must keep medical information of employees confidential.  If the supervisor is able to follow the employer’s existing confidentiality protocols, she should do so.  If following existing protocols is not feasible, a supervisor should safeguard the medical information to the greatest extent possible until it can properly be stored – e.g., not leaving hard copy information, or storing electronic information, where others can access it.   See question B.8.

Reasonable Accommodations
The EEOC essentially has suggested that employers re-engage in the interactive process if a teleworking employee seeks the same reasonable accommodations for home as the employer provided in the workplace.  The EEOC acknowledged that employees may have certain things at home to enable them to do their jobs, such that they do not need all of the accommodations provided in the workplace.  In addition, the undue hardship analysis may be different for home versus workplace accommodations.  See question D.14.

The EEOC answered No to the question of whether an employer who has granted teleworking arrangements in light of COVID-19 must continue to allow teleworking arrangements as a reasonable accommodation after employees are called back to the worksite.  If no disability-related limitation requires telework, an employer does not have to provide telework as an accommodation.  Similarly, if a disability-related limitation exists, but an employer can address it effectively with another reasonable accommodation in the workplace, the employer may choose that accommodation in lieu of telework.  See question D.15.

If an employee has proven his/her productivity in a telework arrangement during the pandemic, an employer may have to reconsider its denial of a pre-COVID-19 request for telework as a reasonable accommodation if the employer denied the request based on concerns regarding productivity.  See question D.16.

Our lawyers are available to assist you with navigating the ADA and other EEO laws through the COVID-19 pandemic and beyond.