On September 8, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance concerning COVID-19 and the workplace. The update provides much-needed answers to questions that have been troubling employers struggling to adapt to circumstances presented by the still-ongoing public health emergency.
Can we test employees for COVID-19 prior to allowing them back in the workplace?
The Americans with Disabilities Act (ADA) generally prohibits employers from requiring employees to submit to medical examinations or testing. An exception exists, however, when that testing is “job related and consistent with business necessity.” The EEOC’s updated guidance explains that as long as the testing is consistent with current guidance from the Centers for Disease Control and Prevention (CDC), employers can administer COVID-19 testing to employees prior to initially allowing them back into workplace. Employers also may periodically test employees who have returned to work to confirm that they do not have the virus and thereby present a direct threat to others. The EEOC’s updated guidance confirms that testing under these circumstances – again, so long as the testing is compliant with current CDC guidance – will meet the “business necessity” standard under the ADA.
Can we ask returning employees if they have had COVID-19, or if they have been tested for it?
The EEOC guidance indicates that employers may ask employees whether they have been diagnosed with COVID-19, are experiencing any COVID-19 symptoms, or if they have been tested for COVID-19, so long as: 1) all employees are asked the same questions; or 2) if not all employees will be asked these questions, the employer asks only those employees about whom it has a reasonable belief based on objective evidence that the employee may have COVID-19; and 3) the questions are asked only of employees physically entering the workplace (and not those teleworking).
Can we ask returning employees if anyone in their family has COVID-19 or COVID-19 symptoms?
No. The EEOC guidance explains that such inquiries are prohibited under the Genetic Information Non-Discrimination Act (GINA). Employers may, however, ask employees whether they have been in close contact with any persons (not just family members) who have been diagnosed with COVID-19 or who have symptoms associated with COVID-19.
What can we do if an employee refuses to be tested or answer questions about COVID-19 infection, symptoms, or testing?
The EEOC guidance confirms that under the present circumstances caused by the pandemic, an employer may bar an employee from being physically present in the workplace if he or she refuses to, for example, have his or her temperature taken or answer questions about COVID-19 matters (e.g., symptoms, testing).
One of our employees was absent from work for a week. Can we ask why?
Because it is not a disability-related inquiry, the EEOC guidance indicates that employers may ask employees who were absent from work the reason for their absence.
In addition to addressing these questions, the updated EEOC guidance also provides answers to several questions concerning employers’ obligation to maintain the confidentiality of employee medical information. It also addresses how teleworking will be evaluated as an accommodation under the ADA for an employee’s disability if the employer allowed employees, disabled or not, to telework during the pandemic. The EEOC explains that even though an employer may have permitted employees to telework in order to slow or stop the spread of COVID-19, that does not mean that telework will automatically be a reasonable accommodation for persons with disabilities once the employer reopens the worksite.
More questions are sure to arise as we head (hopefully) to a resolution of the pandemic. We will continue to provide updates as additional guidance becomes available.