The Equal Employment Opportunity Commission (EEOC) recently released updated guidance for both employers and employees addressing common questions related to COVID-19 and the federal employment laws. The update pulled together information from other agency resources, modified two existing questions and answers, and added 18 new ones. Read on to learn the key takeaways for employers and HR pros.
COVID-19 Testing and Inquiries
Employers may administer COVID-19 tests to all employees. You may administer COVID-19 tests to all employees (1) before initially permitting them to enter the workplace and/or (2) periodically to determine if their presence poses a direct threat to others. You should ensure the testing is accurate and reliable and periodically review information from public health authorities about what may or may not be considered safe and dependable testing.
Additionally, you should still require employees to observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent virus transmission.
Employers may ask all employees entering the workplace about COVID-19. You may ask all employees who will be physically entering the workplace if they have been tested for COVID-19 or have contracted the virus or exhibited its symptoms. You generally aren’t permitted to ask questions, however, if the employees are teleworking and not physically interacting with coworkers or others (e.g., customers). You may exclude employees with COVID-19 or its symptoms from the workplace because their presence poses a direct threat to the health or safety of others.
Employers may ask an individual employee COVID-19 questions or require testing only with a reasonable belief the person has the virus. You may require individual employees (as opposed to all employees) to undergo testing or answer questions designed to determine whether they have COVID-19 only if you possess a reasonable belief based on objective evidence that they might have the virus (e.g., an employee is displaying symptoms). Accordingly, it’s important for you to consider the reasons for taking the actions regarding individual workers.
Employers may not ask employees entering workplace if their family members have COVID-19 or its symptoms. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA doesn’t prohibit you, however, from asking whether they’ve had contact with anyone diagnosed with the coronavirus or who may have its symptoms.
Employees who refuse to take COVID-19 tests or answer questions may be barred from workplace. The Americans with Disabilities Act (ADA) allows you to bar employees from physically entering the workplace if they refuse to have their temperature taken or answer questions about whether they have COVID-19 or its symptoms or have been tested for it. You must follow the usual interactive process, however, if an employee requests a reasonable accommodation for coronavirus screening.
Employers may ask COVID-19 questions if employees travel or are sick or absent from work. Employees who work on-site, whether regularly or occasionally, and report feeling ill or call in sick may be questioned about their symptoms as part of your workplace screening for COVID-19. Additionally, you may always ask employees why they’re absent from work (it isn’t a disability-related inquiry).
Similarly, you may ask them about where they traveled (also not a disability-related inquiry). If the U.S. Centers for Disease Control and Prevention (CDC) or other public health officials have recommended that people who visit specified locations remain at home for a certain period of time, you may ask employees whether they’re returning from those locations (even if the travel was personal).
Confidentiality of Medical Information
Managers should report employees with COVID-19 or its symptoms, but employers must protect their identities. The ADA requires you to keep all medical information about employees confidential, including details about COVID-19. Managers should report any employee with the virus or its symptoms to the appropriate company official (designated in advance) so the employer can take action consistent with public health authorities’ guidance and notify other potentially affected workers.
You should make every effort to limit the amount of people who know the employee’s name, but the circumstances will vary depending on each workplace. An employer’s designated representative may interview the employee to determine whom the employee may have had contact with so that it can notify those individuals without revealing the employee’s identity (by using, for example, a generic descriptor like “someone at this location” or “someone on the fourth floor” has COVID-19).
You’re prohibited from confirming or revealing an employee’s identity, and company officials must maintain the information’s confidentiality.
Employees who enter workplace may report on coworkers’ experiencing COVID-19 symptoms. The ADA’s confidentiality requirements don’t prevent employees who enter a workplace from communicating to managers about coworkers in the same facility who are experiencing coronavirus symptoms. Upon learning the information, the managers should contact the appropriate company officials to report it and discuss next steps.
Employers may not tell employees an individual is teleworking or on leave because he has COVID-19. You may tell employees an individual is teleworking without saying why, if they need to know how to contact him and he is working. If he is on leave (rather than teleworking) because of the coronavirus, its symptoms, or any other medical condition, you may not reveal the reason. Instead, disclose only that he is on leave.
While teleworking, employers must keep medical information confidential. The ADA requires you to keep medical information (including details about COVID-19) confidential and store it separately from regular personnel files. While working remotely, you should attempt to follow your existing confidentiality protocols. To the extent that isn’t feasible, however, you must safeguard the information in the best way possible until it can be properly stored under your confidentiality protocols.
The EEOC recommends you should avoid (1) leaving paper notepads, laptops, and other devices in places where others can access the protected information or (2) storing the documentation electronically where others can see it.
Reasonable Accommodations for COVID-19
Employees may request accommodations before workplace reopens. You may inform your workforce that employees with disabilities may request accommodations in advance they believe they may need when the workplace reopens. If an employee doesn’t ask for an accommodation in advance (and instead requests it later), you must still consider it whenever it’s received.
Once you receive a request, you must begin the interactive process by discussing with the employee whether the impairment is a disability and the reasons why the accommodation is needed.
Teleworking employees may request accommodations. If you require some or all of your employees to telework because of COVID-19, and a teleworker asks for an accommodation, you should engage in the interactive process by discussing (1) what the employee needs and why and (2) whether the same accommodation she already receives or a different accommodation could suffice in the home setting.
Additionally, the undue hardship considerations might be different when you’re evaluating a teleworker’s accommodation request versus working in the workplace. For example, the period of telework may be temporary or of unknown duration, or there may be constraints on the normal availability of items or your ability to conduct a necessary assessment.
In practice, both parties should be creative and flexible regarding what can be done when a teleworking employee requests an accommodation, and providing interim solutions might be appropriate.
Telework may or may not be a reasonable accommodation after workplace reopens. Assuming you permitted employees to work from home, once the workplace reopens and your staff is recalled, you don’t automatically have to grant telework as a reasonable accommodation to every individual with a disability who requests it.
Rather, anytime an employee asks for an accommodation, you are entitled to understand the disability-related limitation necessitating the request. If there is no limitation requiring telework, you don’t have to provide it as an accommodation.
Additionally, suppose you permitted an employee to telework because of COVID-19 and further chose to excuse him from performing one or more essential job functions. In that instance, you don’t have to grant his request to continue teleworking after the workplace reopens if it requires continuing to excuse him from performing the essential function.
The fact you temporarily excused performance of one or more essential functions when you closed the workplace, or otherwise chose to permit telework, doesn’t mean (1) you permanently changed a job’s essential functions, (2) telework is always a feasible accommodation, or (3) it doesn’t pose an undue hardship.
Telework experience may be important for certain accommodation requests. Suppose, before the pandemic, an employee with a disability asked for telework as a reasonable accommodation and showed a disability-related need for it, but you denied it because of concerns about whether she could perform the essential functions remotely. If she gained temporary telework experience during the crisis, it could be relevant to consider during a renewed accommodation request.
The teleworking stint could have served as a trial period showing whether the employee with the disability could satisfactorily perform all the essential job functions while working remotely, and you should consider any new requests in light of the information. As with all accommodation requests, you should engage in a flexible, cooperative, interactive process with the individual going forward.
Bottom Line
The COVID-19 pandemic has disrupted employers’ normal operations in virtually every way, but it’s important for you to stay abreast of the EEOC’s guidance on employment laws during this challenging time. The agency’s recent update clarified:
- You may conduct coronavirus screening tests and inquiries to all employees returning to the workplace, but you must have a reasonable belief that an individual has COVID-19 or its symptoms if you wish to conduct a test or make inquiries to the person.
- To the extent possible, you must keep confidential all medical information about employees, including COVID-19 details.
- Finally, if employees request a reasonable accommodation, you must engage in the interactive process by discussing what they need and the reasons why.
Samuel Jackson is an attorney with Perkins Coie LLP in Seattle, Washington. You can reach him at sjackson@perkinscoie.com.