April 17, 2020
The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing workplace job bias laws, recently published updated guidance on compliance with EEO laws during the COVID-19 pandemic.
Disability Related Inquiries & Medical Examinations
Inquiring into COVID-19 symptoms. If an employee calls in sick, an employer may ask the employee if he or she is experiencing COVID-19 symptoms. Furthermore, an employer may ask about COVID-19 symptoms when screening employees entering the workplace.
What symptoms employers may ask about? An employer should rely on the CDC, other public health authorities, and reputable medical sources for guidance on symptoms associated with COVID-19. The EEOC lists specific symptoms associated with COVID-19 as examples: cough, sore throat, fever, chills, shortness of breath, loss of smell or taste, and gastrointestinal problems such as nausea, diarrhea, and vomiting.
When an employer may take the body temperature of employees. An employer may measure employees’ body temperatures if the CDC and state/local health authorities acknowledge community spread of COVID-19 and issue attendant precautions.
Requiring employees with COVID-19 symptoms to stay at home. The ADA permits employers to require employees experiencing COVID-19 symptoms to stay at home if the CDC issues such advice.
Requiring a doctor’s note for employees to return to work. An employer is permitted under the ADA to require an employee to present a doctor’s note certifying fitness for duty before returning to work. However, if an employee cannot obtain such documentation due to unavailability of health care professionals, new approaches may be necessary such as reliance on local clinics to provide a form, a stamp, or an e-mail certifying that the employee does not have COVID-19.
Confidentiality of Medical Information
Storage of employee COVID-19 information. An employer must store all medical information, including all COVID-19 related medical information, separately from employees’ personnel files. Any COVID-19 related medical information may be stored in existing medical files and employers are not required to create a new medical file system. An employer may keep a log of daily temperature results but must maintain confidentiality of such logs.
Disclosure of COVID-19 positive employees. An employer may disclose the name of an employee who has COVID-19 to public health agencies. Moreover, a temporary staffing agency or a contractor that places an employee in an employer’s workplace may notify the employer and disclose an employee’s name if such agency or contractor learns that the employee has COVID-19.
Hiring and Onboarding
Screening applicants for COVID-19 symptoms. An employer may screen job applicants for COVID-19 symptoms after making a conditional job offer if it does so for all entering employees in the same type of job. Any medical exams are permitted after an employer has made a conditional offer of employment, including taking an applicant’s temperature as part of a pre-employment medical exam.
Delaying applicant’s start date. An employer may delay the start date of an applicant who has COVID-19 symptoms in accordance with CDC guidance.
Withdrawal of job offer. An employer may withdraw a job offer when an applicant has COVID-19 symptoms and the employer needs the applicant to start immediately if CDC guidance provides that individuals with COVID-19 symptoms cannot safely enter the workplace.
Delay of start date or withdrawal of job offer due to high risk characteristics. An employer may not delay an applicant’s start date or withdraw a job offer because the applicant bears a high-risk characteristic – such as age or pregnancy. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.
High risk employees and jobs that can only be performed at the workplace. The EEOC offers examples of reasonable accommodations to offer employees who are at higher risk from COVID-19 due to a pre-existing disability and cannot work from home. Such examples include the following:
- Designating one-way aisles
- Using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers
- Temporary job restructuring of marginal job duties
- Modifying a work schedule or shift assignment
Employees with preexisting mental illness or disorder exacerbated by COVID-19 pandemic. If an employee has difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic due to a preexisting mental health condition – such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder – the employer should follow the normal reasonable accommodation procedures and engage in the interactive process.
Postponement of accommodation discussions where employees are required to telework. If an employee requests an accommodation for his or her disability but such accommodation is not currently needed because the employee is required to telework, the employer should not postpone discussing the request until he or she returns to the workplace. However, a delay may be necessary if an employer cannot acquire all the information necessary in making its decision and the employer may prioritize requests for accommodations that are needed while teleworking.
Requests for additional or altered accommodation. An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to additional or altered accommodation. An employer should engage in the interactive process with an employee who requests new or altered accommodation and may discuss with the employee whether the same or a different disability is the basis for the request.
The EEOC recommends that an employer communicate to its employees that fear of the COVID-19 pandemic should not be directed against individuals based on protected characteristics such as national origin or race.
On April 8, 2020, the CDC published guidance for the implementation of safety practices for critical infrastructure workers who may have been exposed to COVID-19. The CDC advises that such workers may be permitted to continue working following a potential COVID-19 exposure if they remain asymptomatic and additional precautions are implemented. A “potential exposure” is defined as household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19.
Additional precautions for workers with a potential COVID-19 exposure are provided below:
- Pre-Screen. Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, such temperature checks would occur before the employee enters the facility
- Regular Monitoring. The employee should self-monitor under the supervision of his or her employer’s occupational health program
- Wear a Mask. The employee should always wear a mask while in the workplace for 14 days after last exposure. Employers may issue facemasks or approve the employee’s supplied cloth face covering.
- Social Distance. The employee should maintain 6 feet and practice social distancing as work duties permit.
- Disinfect and Clean. All areas such as offices, bathrooms, common areas, and shared electronic equipment should be routinely disinfected.
If the employee becomes sick during the workday, they should be sent home immediately. Additionally, surfaces in his or her workspace should be cleaned and disinfected, and information should be compiled on all persons who had contact with the ill employee.
The CDC also offered general precautions that employers should take, regardless of whether an employee had a potential COVID-19 exposure. Such precautions include the following:
- Employees should not share headsets or other objects that are near the mouth or nose
- Employers should increase the frequency of cleaning commonly touched surfaces
- Employers and employees should consider pilot testing the use of face masks to ensure they do not interfere with work assignments
- Employers should work with facility maintenance staff to increase air exchanges in rooms
- Employees should physically distance on breaks, stagger breaks, avoid congregation in the break room, and not share food or utensils.
Source: Ballard Rosenberg Golper & Savitt LLP