Compliance with EEOC in the Age of COVID-19

Jose LlerenaCovid-19 Coronavirus, Safety

Compliance with EEOC in the Age of COVID-19

The Equal Employment Opportunity Commission (“EEOC”) is the federal agency charged with enforcing the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the Rehabilitation Act of 1973, and the Genetic Information Nondiscrimination Act (“GINA”). Employers need to be aware that the COVID-19 pandemic has not suspended the applicability of these laws to their business nor the EEOC’s enforcement of same. Below are some salient points employers should know:

  • The alphabet soup of federal employment laws does not hinder employers from following CDC or state/local health authorities COVID-19 guidelines.
  • For all employees physically entering the workplace, employers can take their temperatures, ask them if they have COVID-19, if they have its symptoms, or if they have been tested. COVID-19 symptoms are generally regarded as cough, sore throat, fever, chills, and shortness of breath.
  • An employer may bar an employee from physically entering the workplace if they have COVID-19 or its symptoms.
  • An employer may bar an employee from physically entering the workplace for refusing to allow the employer to take his temperature, to answer an inquiry as to whether he has COVID-19, its symptoms or if he has been tested.
  • However, if an employer wishes to make the aforementioned inquiries of a particular employee, the employer must have a reasonable belief based on objective evidence, e.g., a hacking cough (a symptom associated with COVID-19). If the employee is exhibiting symptoms not related to COVID-19 an employer may not make these inquiries.
  • An employer may not make the COVID-19 inquiries of teleworkers.
  • Any medical information an employer learns as a result of its inquiries is confidential and may not be disclosed to third-parties. However, where a supervisor learns that an employee has COVID-19 or its symptoms, this information may be reported to appropriate management staff so that action may be taken consistent with CDC or state/local health authorities COVID-19 guidelines. The management staffers should be only those who “need to know” in order to minimize the sharing of confidential medical information. They should be reminded to keep the information confidential.
  • An employer may advise other employees of the existence of a co-worker with COVID-19 or its symptoms for the purposes of taking appropriate actions. However, an employer under these circumstances should take care not to divulge the identity or medical information of the sick employee. For example, an employer representative may interview the sick employee about what other employees he/she has come in contact with and then speak to these employees without having to divulge his/her identity.
  • A co-worker who suspects another employee of having symptoms can report the employee with symptoms to a supervisor who can report it to the appropriate members of management.
  • The ADA permits employers to notify public health authorities of a person with COVID-19 where they pose a “direct threat”, i.e., significant risk of substantial harm to himself or others.
  • A 65 year or older (CDC identified age group of higher risk) employee may not be barred from the workplace. However, an employer is not required to make special telework accommodations for workers 65 year or older.
  • An employer may not bar a pregnant woman. However, a pregnant woman may ask for an accommodation granted to other similarly situated employees.
  • Employees may not be barred based on national origin.
  • COVID-19 is not currently defined as a disability under the ADA. However, employees with underlying medical conditions that potentially put them at higher risk of contracting or being adversely affected by COVID-19 may ask for a reasonable accommodation for their own medical condition from their employer so long as such accommodations do not cause undue hardship, e.g., great expense, on the employer.

Employers can keep abreast of all the latest pronouncements from the EEOC by clicking on the links below.

https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

https://www.eeoc.gov/facts/pandemic_flu.html