Reopening and EEOC Guidance for Employers
By Karuna S. Brunk
At least in the short-term, COVID-19 is here to stay. As such, many employers are exploring what they can and cannot do and say to protect the workplace and limit liability. On April 23, 2020, the Equal Employment Opportunity Commission (EEOC) issued new guidelines to aid employers in protecting the workplace and avoid running afoul of the Americans with Disabilities Act (ADA).
1. Screening and Medical Inquiries
Employers may ask employees about the COVID-19 symptoms that have been identified by the Centers for Disease Control and Prevention (CDC) – fever, chills, cough, shortness of breath, sore throat, chills, muscle pain, headache, or loss of taste or smell – to screen employees for illness before they enter the workplace. Employers should check the CDC website (https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html) for additional symptoms as public health officials learn more about the virus and its impact on the human body.
The EEOC has also said that employers can take employees’ body temperatures. This is generally a “medical examination” under the ADA, but because of the community spread of COVID-19, the EEOC has acknowledged that this data point is useful for protecting the workplace. Obviously, employers should be aware that many individuals who have COVID-19 do not have fevers.
The EEOC has stated that employers may also administer COVID-19 test a before permitting employees to enter the workplace to prevent the spread of COVID-19 in the workplace. Presumably, this EEOC guidance refers to testing employees to determine if they actually have the virus and not to determine if they have previously had the virus. As testing for COVID-19 becomes more wide-spread through the phased reopening, it may become easier for employers to obtain tests employees as a matter of course. Employers may also require an employee to provide a doctor’s note regarding his “fitness” to come to work. For example, if an employee went home with a cough and fever, his employer may require him to provide a doctor’s note to certify that he does not have COVID-19 and is fit to return to work.
2. Employee Leave
Employers may send employees home or require employees to stay home if they have COVID-19 symptoms. As a reminder, the Families First Coronavirus Response Act may come into play in these circumstances.
3. Confidentiality Concerns
Generally, the ADA requires that employers limit accessibility to, and confidentially retain employee medical information. COVID-19 information should be protected in a similar manner as other types of employee medical information – employers should not store this information in employee personnel files, for example.
4. The Onboarding Process
Similar to the employee screening process described above, after employers extend offers of employment, they may screen job applicants for COVID-19, including asking whether the applicant has COVID-19 and taking the applicant’s temperature. Employers may even delay employee start dates or withdraw offers altogether if applicants have COVID-19 or symptoms of COVID-19 and cannot safely enter the workplace. Employers should proceed with caution in withdrawing a job offer or postponing a start date and consult with an attorney to avoid other types of potential liability.
5. Reasonable Accommodations
Some employees may be entitled to a reasonable accommodation under the ADA due to having a disability that is unrelated to COVID-19 but may cause them to be at high risk for complications from COVID-19. To be clear – generally, COVID-19 by itself would not be considered a disability pursuant to the guidance under the ADA. To accommodate such employees, employers may consider physically altering the work environment, restructuring job duties, or temporarily transferring an employee to a different position. Ultimately, if possible, it may be optimal to consider teleworking as a way to accommodate employees and foster safe social distancing in the workplace. Generally, employers should engage in the same interactive process as they would utilize in response to accommodation requests outside of the COVID-19 situation – employers may request medical documentation and ask questions necessary to accommodate the employee. Employers may need to provide temporary accommodation to employees due to the COVID-19 situation. As with other ADA reasonable accommodation requests, an employer does not need to provide a particular reasonable accommodation if it poses an “undue hardship” to the business.
This is the “tip of the iceberg” of EEOC guidelines, and, because the COVID-19 situation is dynamic and evolving, the EEOC likely will release additional guidelines. As you open your business and put measures in place to protect employees from COVID-19, we suggest that you contact a qualified and experienced labor and employment attorney for advice and guidance during this uncertain time.