EEOC Updates Offer Dos. Don'ts for COVID-19 Workplace Rules

Washington, DC (WorkersCompensation.com) – Keeping workplaces safe during the COVID-19 pandemic has required changes to “business as usual.” One of these changes is that employers now must be vigilant about employees’ symptoms and be willing to ask about them. Whereas a year ago most people would not have been asked about symptoms or had daily temperature checks before work, such practices are part of many workplaces’ “new normal.”

Because seeking information regarding employees’ health could raise disability discrimination issues, the Equal Employment Opportunity Commission has released guidance on how employers can curb COVID-19’s impact on workplaces while also staying within the limits of the Americans with Disabilities Act and other laws. In its Sept. 8 update to the guidance, the EEOC produced the following dos and don’ts employers should keep in mind when balancing workers’ safety with their ADA rights.

Do ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19. An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because their presence would pose a direct threat to the health or safety of others.

Do respond to an employee’s refusal to have his temperature taken or to answer questions. The ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19. To gain the cooperation of employees, however, the EEOC advises employers to ask the reasons for the employee’s refusal.

Do follow up with employees who call in sick. Employers may ask employees who work on-site, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.

Do keep medical information confidential. The ADA requires that an employer keep all medical information about employees confidential. The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. However, when informing employees that they were in contact with someone with COVID-19, employers are prohibited from confirming or denying the employee’s identity.

Do keep medical information separate from employees’ regular personnel files. Even in teleworking times, supervisors must safeguard employees’ medical information to the greatest extent possible. This means that notepads, laptops, or other devices should not be left where others can access the protected information. Likewise, documentation must not be stored electronically where others would have access.

Don’t single employees out without a reasonable basis. If an employer wishes to ask only a particular employee to answer questions or to have her temperature taken or undergo other screening or testing, the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease, such as a display of symptoms.

Don’t ask remote workers about COVID-19 symptoms. For employees who are teleworking and not physically interacting with coworkers or others, employers generally aren’t permitted under the ADA to ask these questions.

Don’t ask whether employees’ family members have COVID-19 or associated symptoms. The Genetic Information Nondiscrimination Act prohibits employers from asking medical questions about family members. Instead, the question should be phrased as whether the employee has had contact with anyone diagnosed with COVID-19 or who had COVID-19 symptoms.

Don’t wait for symptoms to question an employee who has traveled. Questions about where a person traveled would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.

Don’t automatically grant telework as an accommodation. If there is no disability-related limitation that requires teleworking, the employer does not have to provide telework as an accommodation. The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.

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