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September 29th, 2020
EEOC Again Updates Key Guidance for Employers Reopening Workplaces
On September 8, 2020, the EEOC again updated What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The update contains important new guidance to help employers manage employee requests lawfully while reopening offices and other workplaces. Here’s a summary of the key takeaways.
COVID Testing: The EEOC reiterated its previous guidance that employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus would pose a “direct threat” to others. Therefore, an employer may choose to administer COVID -19 testing to employees and the Americans with Disabilities Act (ADA) does not interfere with employers following recommendations by the CDC, as testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard. Employers should ensure that tests are considered accurate and reliable by, for example, reviewing information from the FDA and CDC or other public health authorities and should continue to check agency websites for updates.
Questions about Family Members: The EEOC clarified that while employers may not ask employees medical questions about family members (e.g. Do you have a family member who has COVID-19?) as such questions are prohibited under the Genetic Information Nondiscrimination Act (GINA). However, employers may ask employees whether they had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.
Questions about Absence from Work: The EEOC clarified that employers may ask an individual who is working on site who reports feeling ill, or calls in sick, about their symptom of COVID-19 or why they did not report to work. Employers may single out only one employee – as opposed to asking all employees – about symptoms or to undergo screening and testing only where there is “a reasonable belief based on objective evidence that this person might have the disease.” An employee who knows that a coworker who reports to the same workplace has symptoms is similarly permitted to inform his supervisor about the coworker’s symptoms.
When an Employee Refuses to Undergo Temperature Checks or Screening: Under current circumstances, employers may bar an employee from physical presence in the workplace if s/he refuses to have their temperature taken or respond to COVID-19 screening questions. The EEOC suggests, however, that employers ask the employee the reason for refusal; employers may then be able to provide information or reassurance that they are taking steps to ensure the safety of everyone in the workplace and that the steps are consistent with CDC recommendations.
Questions about Travel: The EEOC confirmed that employers may ask where an employee has travelled regardless of whether that employee has developed COVID-19 symptoms. Travel-related questions are not disability-related.
Respecting ADA Confidentiality: The EEOC clarified that while employers must keep employee medical information confidential, managers who learn that an employee has COVID symptoms or a diagnosis may disclose information in contacting those who may have been in contact with the impacted employee so long as they do not reveal the employee’s identity. The EEOC suggests using a general descriptor such as “someone at this location” or “someone on the fourth floor.” All employer officials who are designated as needing to know the identity of an impacted employee should be specifically instructed to maintain confidentiality. If an employee is teleworking or on leave because of COVID symptoms or a diagnosis, employers may disclose that the employee is teleworking or on leave without disclosing the reason.
Granting of Telework as a Reasonable Accommodation under the Americans with Disabilities Act: The EEOC clarified that employers who have provided telework to employees as a general effort to reduce COVID spread do not, upon reopening, have to automatically grant telework as an accommodation to any employee with a disability who requests it. Rather, the employer is required to engage in a fact-specific determination whether any particular employee has a disability-related limitation that requires telework as an accommodation or if the limitation can be addressed via another form of reasonable accommodation. Even where an employer has previously excused an employee from providing an essential function of their job in order to allow for telework, the employer is not required to permanently change that employee’s job to excuse any essential functions.
If you have questions about the new EEOC guidance, or other questions about reopening your business, please contact Wendy Stryker at (212) 705-4838 or firstname.lastname@example.org, Tricia Legittino at (310) 579-9632 or email@example.com, or any other member of the Frankfurt Kurnit Employment Compliance, Training & Litigation Group.
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