EEOC Guidance on the Impact of COVID-19 on EEO Laws

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On April 9, 2020, the Equal Employment Opportunity Commission published a FAQ regarding the impact of COVID-19 on equal employment opportunity laws enforced by the agency, such as the Americans with Disabilities Act and the Rehabilitation Act.  Below are some highlights:

For purposes of protecting the rest of the workforce, what information may employers ask of employees who call in sick or when screening employees entering the workplace?

Employers may ask employees if they are experiencing COVID-19 symptoms, such as fever, chills, cough, and shortness of breath.  Please note, however, this is not an exhaustive list of symptoms and COVID-19 has been shown to manifest differently in people, including exhibiting additional symptoms such as loss of smell or taste and gastrointestinal problems.  Employers should continue to monitor the CDC guidelines for the most current information.

Fever has been identified as a primary symptom of COVID-19, may I take the body temperature of employees entering the workplace?

In response to the pandemic and on CDC guidance, the EEOC is not objecting to employers taking employee temperature.  However, the EEOC cautions against relying on an absence of fever to definitively conclude the employee does not have COVID-19.

What confidentiality expectations are there regarding employees who have COVID-19?

As with all medical information for an employee, the employer should maintain COVID-19-related information in a separate file.  Employers may keep a log of employees who are diagnosed with COVID-19 and disclose that information to a public health agency, as required or requested.

May employers screen applicants for COVID-19 and, if so, what options are available if the employee is diagnosed with COVID-19?

As long as the practice is applied uniformly, after a conditional job offer, an employer may take the temperature of or otherwise screen an applicant for COVID-19 symptoms.  If the applicant is found to have COVID-19, the employer may delay the start date or withdraw the job offer if it can establish an immediate hiring need.

Does the existence of this pandemic relieve employers of their obligations to provide reasonable accommodations to employees?

The EEOC is very clear that, in the absence of demonstrable undue hardship, it will continue to expect employers to be “flexible” in considering requests for reasonable accommodations.  Examples of accommodations identified by the EEOC include, installation of physical barriers that would reduce contact with others (e.g., plexiglass), temporary job duties restructuring or transfers, and schedule modifications.

Please reach out to an attorney in the Employment Group with any questions regarding how this guidance may impact your organization’s operations.  The guidance can be found here.

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