Late last week, the Equal Employment Opportunity Commission (EEOC) posted an update to its short question and answer document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws. The highlights (both pre-existing and newly added last week) include:
- While the EEO laws, including the ADA and Rehabilitation Act, continue to apply during this pandemic time, the EEOC has made clear they do not interfere with or prevent employers from complying with the guidelines and suggestions issued by the CDC or state/local public health authorities regarding steps employers should take regarding COVID-19. Those guidelines are evolving and employers should be sure to keep up-to-date.
- The EEOC’s guidance on Pandemic Preparedness in the Workplace, issued during the H1N1 outbreak has been updated to address examples and information regarding COVID-19, with newly added information appearing in bold.
- The key takeaways on various ADA-related topics in the workplace during this pandemic [information updated last week is underlined] include:
- During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of COVID-19, such as fevers, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as confidential medical records as required the ADA.
- As to storing medical information on COVID-19, an employer may store all medical information in existing medical files and does not need to create a separate medical file solely for this information.
- When screening employees in the workplace, employers may expand the list of associated symptoms about which they ask employees, in accordance with informative guidance from the CDC, other public health authorities, and reputable medical sources. Additional symptoms may include new loss of smell or taste and gastrointestinal problems (nausea, vomiting or diarrhea).
- Employers are permitted to take employee’s temperatures, even though that is considered a medical exam. The information needs to be stored as a medical record. Employers may maintain a log of temperature checks it takes. Employers must recognize also that not all individuals with COVID-19 will exhibit a fever.
- The CDC permits an employer to require employees to stay home if they have symptoms of COVID-19 and the ADA does not interfere with this advice.
- An employer may disclose the name of any employee who it learns has COVID-19 to a public health agency.
- A temporary staffing agency or contractor that places an individual in an employer’s workforce may notify the employer if it learns the worker has COVID-19.
- An employer may NOT unilaterally postpone the start date or withdraw a job offer to an individual who is pregnant or age 65 or older or any individual who is in a high risk group as identified by the CDC. An employer may choose to allow telework if an option or discuss with the individual an agreement to delay the start date.
- Employers may expressly communicate to the workforce that fear of COVID-19 should not be misdirected against individuals based on their national origin, race, or other prohibited bases.
- Employers need to approach requests for reasonable accommodations in the same manner as is usually required, including requests to offer protection to an individual whose disability puts her at greater risk from COVID-19 and is requesting actions to eliminate possible exposure. Flexibility by both employers and employees is important to determining if some accommodation is possible.
- For employees who are teleworking during this time, employers should not put off discussing a request from an employee for an accommodation that will not be needed until he returns to the workplace when mandatory teleworking ends. An employer may give higher priority to requests that are needing during teleworking or other pressing in the moment requests, but the employer may begin discussions of “return to the workplace” accommodations so it has the information needed to make the decision.