On April 9, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued its latest guidance (“Guidance”) for employers on how to ensure compliance with their obligations under federal antidiscrimination laws during the COVID-19 pandemic. As we previously reported, the EEOC’s initial guidance on COVID-19 was released on March 17, 2020, as a series of Frequently Asked Questions (“FAQs”). Two days later, the agency updated its publication titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” (“ADA”), originally prepared during the H1N1 outbreak, to address issues specifically concerning COVID-19. The EEOC’s Guidance, which adds to its previous FAQs, again focuses primarily on employers’ obligations under the ADA.
Screening for COVID-19
In its earlier guidance, the EEOC gave examples of the types of symptoms for which an employer may screen employees before allowing them to enter the workplace, in particular, fever and cough. Since then, public health authorities have expanded the list of symptoms associated with COVID-19 (e.g., loss of taste or smell and gastrointestinal problems, such as nausea, diarrhea, and vomiting). Accordingly, the EEOC now instructs employers to “rely on” the Centers for Disease Control and Prevention (“CDC”), as well as “other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease… when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace.”
Confidentiality of Medical Information
The Guidance adds a series of FAQs addressing the confidentiality of medical information—including information gathering pursuant to temperature taking or illness reporting. Specifically:
B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information?
The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
B.2. If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results?
Yes. The employer needs to maintain the confidentiality of this information.
B.3. May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19?
B.4. May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19?
Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.
Higher-Risk Job Applicants
The Guidance instructs employers that, while the CDC has identified individuals over age 65 and pregnant women as being at greater risk from COVID-19, employers may not “unilaterally” postpone a new hire’s start date or withdraw a job offer because that person is pregnant or over 65 years old. Rather, employers are advised that they can choose to “allow telework” or “discuss with these individuals if they would like to postpone the start date.”
Reasonable Accommodation: Employees with a Preexisting Disability
The Guidance advises employers to consider whether there are reasonable accommodations that can be offered to employees who are at a higher risk from COVID-19 because of a preexisting disability. Where, for example, a job may only be performed at the workplace, the Guidance suggests that “[l]ow-cost solutions achieved with materials already on hand or easily obtained may be effective,” and provides as examples, “designating one-way aisles; [and] using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance….” The Guidance also instructs employers to consider whether “temporary job restructuring of marginal job duties,” temporary transfers to a different position, or modifying a work schedule or shift assignment may be a reasonable accommodation to reduce exposure in the workplace or while commuting.
In addition, the Guidance reiterates that the accommodation obligation extends to employees with a preexisting mental illness or disorder “that has been exacerbated by the COVID-19 pandemic,” as well as to employees who are already receiving an accommodation but may need an additional or different accommodation because, for example, they are now teleworking. Importantly, the EEOC reminds employers that, as with any accommodation request, they may “ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.”
In discussing accommodation requests, the Guidance suggests that employers and employees consult the Job Accommodation Network (“JAN”) website, www.askjan.org, for types of accommodations and JAN’s materials specific to COVID-19, available at https://askjan.org/topics/COVID-19.cfm.
Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics
The Guidance stresses the importance of communicating with employees “that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.” Toward this end, employers may want to remind employees of the company’s anti-harassment and antidiscrimination policies.
Furloughs and Layoffs
Finally, the Guidance reminds employers to comply with any applicable waiver responsibilities when conducting a layoff. For instance, special rules apply when an employer is offering employees severance packages in exchange for a general release of all discrimination claims against the employer. The EEOC refers employers to the agency’s technical assistance document on severance agreements, which speaks to rules for waivers under the Age Discrimination in Employment Act and other federal discrimination laws. For more information on this topic, see our Advisory “The EEOC Is Scrutinizing Separation Agreements: Does Yours Hold Up?”