“Ask the EEOC”: EEOC COVID-19 Answers in a Nutshell

COVID-19 image with EEOC logoOn March 27, 2020, the EEOC answered questions submitted by the public regarding EEO laws and COVID-19. All of the EEOC’s answers also apply federal employees.

According to the EEOC, as of March 27, 2020:

  1. The EEOC cannot yet provide definitive answers to some ADA questions; it is still trying to determine the answer in this unique time.
  2. EEO laws will not prevent an employer from following guidance from the Center for Disease Control (CDC), or state or local authorities.

Screening Employees

  1. Employers may ask all employees physically coming into the workplace:
    • if they have COVID-19 or symptoms associated with COVID-19 or
    • if they have been tested for COVID19.
  2. Employers may require employees physically coming into the workplace to submit to temperature screening.
  3. Employers may not require screening of employees who are working from home.
  4. Employers may not single out certain employees for screening absent some reasonable belief based on objective evidence that the person might have the disease, such as the employee is exhibiting symptoms.
  5. Employers may inquire as to whether employees have had contact with someone diagnosed with COVID-19 or symptoms of COVID-19.
    • The EEOC recommends this question be broad—contact with any person—rather than limited to whether an employee has a family member diagnosed with COVID-19 or symptoms of COVID-19.
    • The EEOC cautions that the Genetic Information Nondiscrimination Act (GINA) prohibits requiring disclosure of an employee’s family medical information.

Excluding Employees from the Workplace

  1. Employers may exclude employees from the workplace if they have COVID-19 or symptoms of COVID-19.
  2. Employers may exclude an employee from the workplace who refuses a) to answer appropriate screening questions, or b) to have her/his/their temperature taken. The employer is permitted to ask why the employee refuses and to offer appropriate assurances regarding confidentiality.
  3. Employers may not exclude employees from the workplace because they are high risk, such as employees over 65 or with an underlying medical condition. Similarly, employees may not treat these employees differently, such as requiring telework.
  4. Employers may not exclude employees from the workplace based on their national origin.
  5. Employers may not lay off or furlough an employee because the employee is pregnant.

Confidentiality

  1. Employers must keep all medical information confidential, whether or not the information is related to a disability; however this confidentiality requirement does not bar employers from reporting COVID-19 information to the CDC or other public health entities.
  2. Employers should limit sharing information on a need-to-know basis. The nature of individuals who need to know the identity of an employee diagnosed with or suspected of having COVID-19 depends on each workplace and why the individual may need to know this information.
  3. Employers should designate a representative to interview an employee diagnosed with COVID-19 or who has symptoms of COVID-19 to learn the names of other employees with whom the employee had contact. The representative should inform the employees of the contact but should not disclose the affected employee’s name. Even if an employee guesses the identity of the affected employee, the employer should not confirm or reveal the affected employee’s identity.
  4. Employers should designate in advance those who are designated to know employee information and what steps to take; those designated individuals should be instructed on the requirement for confidentiality.
  5. If an employee is teleworking because she/he/they have symptoms of COVID-19, the employer may tell other employees that their co-worker is teleworking but may not tell the employees why.
  6. The ADA does not prohibit employees from informing a supervisor if she/he/they believe that a co-worker has been diagnosed with COVID-19 or has symptoms of COVID-19. Any supervisor provided with that information should report it to the appropriate person.
  7. Employers may not disclose the identity of an employee who has COVID-19 or has symptoms of COVID-19, even if the employer believes disclosure would be the easiest way to handle the situation.
  8. While working remotely, those responsible for maintaining employee medical information should follow regular protocols when possible. If this is not possible, they must safeguard the medical information to the greatest extent possible until can they can properly store the information.

Providing Reasonable Accommodations and/or Additional Protective Measures

  1. Employers are not required to provide special accommodations such as telework to employees who are high-risk solely because of their age—the Age Discrimination Enforcement Act does not require reasonable accommodations. Employers, however, may not exclude older workers from benefits provided to other employees.
  2. Employers may not deny pregnant employees a workplace accommodation that the employer provides to other employees who are limited in their ability to work.
  3. Pregnant employees with pregnancy-related medical conditions may be entitled to reasonable accommodations; however, pregnancy itself is not a disability.
  4. At this time, the EEOC has not decided whether a COVID-19 diagnosis may be considered a disability under the Americans with Disabilities Act.
  5. On the other hand, the EEOC has decided that if an employee has a disability that puts her/him/them at greater risk of severe illness if the employee contracts COVID-19, and that employee requests a reasonable accommodation to limit exposure, the employer must treat this as a standard request for a reasonable accommodation and take all appropriate steps.
    • The employer may verify the disability if it is not already on notice.
    • The employer may verify that the accommodation requested is due to the disability.
    • The employer should be flexible in how it verifies a disability, such as accepting a health insurance record or prescription.
    • The employer may want to provide a temporary accommodation while waiting for necessary documentation.
  6. Similarly, ff an employee has a disability that is exacerbated by the situation and the employee requests a reasonable accommodation, the employer must treat this as a standard request for a reasonable accommodation and take all appropriate steps.
    • The employer may verify the disability if it is not already on notice.
    • The employer may verify that the accommodation requested is due to the disability.
    • The employer should be flexible in how it verifies a disability, such as accepting a health insurance record or prescription.
    • The employer may want to provide a temporary accommodation while waiting for necessary documentation.
  7. Employers are not required to provide a reasonable accommodation to an employee who lives with someone who has a disability that puts her/him/them at greater risk of severe illness if the employee contracts COVID-19. Employers should, however, keep in mind how it treats other employees with similar requests.
  8. Employers and employees should try to be very flexible during the interactive process following a request for a reasonable accommodation and consider interim accommodations where appropriate.
  9. Whether an employee with a disability is entitled to the same reasonable accommodations provided in the workplace if the employer requires or permits employees to telework due to the pandemic depends on the specific situation. Considerations include:
    • Whether the employee already has mechanisms in place at home that meet the same needs;
    • Whether the request would be an undue hardship in this context (including given the limited nature of the telework arrangement); and
    • Whether there are constraints on the availability of any needed resource.
  10. If an employer requires or permits employees to telework due to the pandemic, the employer is not automatically required to permit all disabled employees who request to telework as a reasonable accommodation to do so once the pandemic is over.
    • Employers must engage in the typical interactive dialogue in considering the request.
    • Employers should use the employee’s performance during the telework period to assess the potential for accommodation moving forward.

Disparate Treatment and Hostile Work Environments

  1. Employers may not treat employees differently based on their national origin.
  2. Employers may not permit a hostile work environment based on an employee’s national origin because others link it to transmission of COVID-19.

Notably, the foregoing does not cover the written guidance issued by the EEOC, What You Should Know About the ADA, the Rehabilitation Act, and COVID-19 and Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, which it updates regularly.

If you have questions about your employment rights during the pandemic, please contact the employment lawyers of Kalijarvi, Chuzi, Newman & Fitch. We advocate for you.

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