The EEOC has been regularly updating its Technical Assistance Questions and Answers entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” This guidance is only valid during the time of the COVID-19 pandemic, and was most recently updated on September 8, 2020. While the full guidance is worth a thorough read by HR professionals and attorneys, the following summarizes ten key highlights from the EEOC’s guidance:
- Employers are always entitled to ask why an employee has not reported to work. If an employee reports that he or she is sick, the employer may ask the employee if he or she is experiencing symptoms of COVID-19 without running afoul of the Americans with Disabilities Act.
- Because of the COVID-19 pandemic, employers are allowed to take employees’ temperatures, even though doing so is generally considered a medical examination. Employers are allowed to bar employees from entering the workplace if they refuse to comply with permissible COVID-19 screening protocols without a valid request for an accommodation.
- Employers can require employees to take COVID-19 tests to determine whether any employee is currently infected with the COVID-19 virus, either initially before allowing employees to return to the workplace, or periodically to screen for COVID-19. Any such testing should be accurate and reliable based on available guidance from the CDC and FDA.
- Employers cannot require employees to submit to a COVID-19 antibody test to enter the workplace. This kind of test is considered an impermissible medical examination under the ADA, as the EEOC has stated that it is not “job related and consistent with business necessity.”
- Employers can require an individual employee to undergo additional screening or testing beyond that generally required of other employees if the employer has a reasonable belief based on objective evidence that the individual may have COVID-19. For example, an employer could require only those employees who did not pass entry screening to have a COVID-19 test administered before returning to the workplace.
- Employers may not ask employees medical questions about their families, including whether their family members have COVID-19 or its symptoms. However, it is permissible for employers to ask employees whether they have had close contact with anyone who has COVID-19 or its symptoms.
- Employers need to keep confidential any medical information they learn about employees or applicants. This information (including symptom screening questionnaires, temperature logs, and COVID-19 test results) needs to be stored separately from an employee’s personnel file.
- Employers can disclose the name of an employee who has tested positive for COVID-19 to the local health department, but employers cannot disclose the employee’s name to his or her co-workers. Employers are allowed to provide a generic description, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, even if this means that the employee’s co-workers may be able to figure out who the infected employee is.
- Employers are not necessarily required to provide an employee with the same ADA accommodations at home as in the workplace if the employee is temporarily teleworking due to COVID-19. But employers must still engage in the interactive process and determine whether the employee’s needs and resources may be different at home, and whether a particular request for an accommodation poses an undue hardship to the employer for a temporary period of telework.
- Although they are not required to, employers may provide employees over age 65 with additional flexibility due to the fact that these individuals have been identified as having a higher risk of severe illness from COVID-19. Older workers must be free to voluntarily decide whether they wish to take advantage of these options, however; the Age Discrimination in Employment Act (“ADEA”) prohibits employers from refusing to allow older workers to return to the workplace, even if the employer’s motives are benevolent.
If you have questions regarding this guidance or would like to discuss COVID-19 screening or accommodations, please contact your Dykema relationship attorney.