The EEOC Issued Additional Guidance for Employers Related to the Federal Equal Employment Opportunity Laws and the COVID-19 Pandemic
On March 27, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) conducted a webinar addressing questions regarding employers’ responses to public health directives and federal Equal Employment Opportunity Laws during the COVID-19 pandemic.
In particular, the webinar addressed the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act (Title VII), and the Genetic Information Nondiscrimination Act (GINA). Employers may listen to a recording of the webinar. Below is a brief summary of the webinar.
- Disability Related Inquires and Medical Related Examinations
- Employers may take the temperature of any employee physically entering the workplace and may ask those employees questions such as if the employee has symptoms associated with COVID-19, or if they were tested for COVID-19.
- Employers may also require that only a particular employee have their temperature taken or ask questions of that particular employee if the employer has a reasonable belief, based on objective evidence, that this employee might have COVID-19. For instance, the EEOC explained that if an employee has a hacking cough, then the employer may ask about the cough, whether the employee has been to the doctor, and/or whether the employee knows if they have or might have COVID-19. These questions are permissible because this cough is one of the symptoms associated with COVID-19. Based on an employee’s symptoms and/or answers to these questions, employers may exclude this employee from the workplace.
- These types of questions are impermissible if employees are teleworking as teleworking does not cause a person to be in physical contact with other employees.
- Further, employers are not permitted to ask employees about whether their family members have COVID-19 or symptoms associated with COVID-19. GINA prohibits employers from asking employees medical questions about an employee’s family members. Rather, the EEOC advised that the employer may ask the employee whether they have come in contact with anyone that the employee knows was diagnosed with or has symptoms associated with the disease.
2. Confidentiality of an Employee’s Medical Information
- Employers must keep all medical information about an employee diagnosed with COVID-19 confidential, including the name of the employee. In addition, an employer may not disclose the reason for an employee’s leave if it is due to contracting COVID-19.
- Employees are permitted, however, to communicate to their supervisors if they know a co-worker is showing symptoms of or has COVID-19. The EEOC advised that after learning about this information the supervisor should contact the appropriate management official to report the information and discuss next steps.
- If an employee is diagnosed with COVID-19, a representative of the employer should interview that employee so the employer can receive the name of the employees that may have come in contact. Further, any employee designated by the employer as needing to know the identity of the employee diagnosed with COVID-19 should be instructed on the confidentiality of this information.
- Employees’ medical confidentiality and telework. In addition, the ADA still requires that medical information for employees be kept confidential while employees telework. If possible, a manager must continue to follow the employer’s existing confidentiality protocols while working remotely. If the supervisor cannot, then the supervisor must safeguard all confidential information while teleworking until it can be stored properly. For instance, the EEOC recommends that managers should not leave their laptops or personal devices out where others can see the information. Further, confidential information should not be stored in locations where others have access to it.
3. Discrimination in the Workplace
- Age-Related and Pregnancy-Related Concerns. Although the CDC identified certain individuals at higher risk of severe illness if they contract COVID-19, the ADEA and Title VII prohibit employers from discriminating based on age and sex. Therefore, when implementing policies during this pandemic, employers are prohibited from treating employees differently because they are older or pregnant. This includes laying-off or barring employees from the workplace based on age or pregnancy.
- National Origin-Related Concerns. Employers are also prohibited from discriminating against an employee based on national origin under Title VII. An employer is prohibited from excluding an employee from the workplace based on national origin due to concerns of transmission of COVID-19. Employers should continue to enforce their workplace harassment policies that prohibit the harassment of employees based on national origin, even if such actions are linked to the fear of COVID-19.
4. Requests for Telework, Leave, or Other Job Modifications
- While the EEOC determined it was too soon to definitely decide whether COVID-19 should be classified as a disability under the ADA, the agency encouraged employers to take a broad view and use an interactive process to fully discuss any requests for accommodation. For implications of COVID-19 as it relates to current ADA accommodations, employers and employees should discuss whether the same or different accommodations suffice in the home setting. The employer may provide reasonable accommodations that meet the employee’s needs on a temporary or short-term basis. The employer is not required to continue with these accommodations after the global pandemic passes.
- Further, if an employee requests reasonable accommodations because the employee has a disability that puts them at greater risk of severe illness if they contract COVID-19, then the employer should: (i) verify the employee’s disability; (ii) verify that the accommodation is necessary because the disability may put the individual at higher risk; (iii) discuss the need for the requested accommodation with the employee; and (iv) consider whether the accommodation would cause an undue hardship on the employer.
- Further, the agency advised that an employer is never required to eliminate an essential job function as an accommodation for an individual with a disability. If an employer must temporarily excuse an essential job function, then the employer may restore the employee’s essential duties after the pandemic passes.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Jonathan Krause is a partner in the Litigation Department at Klehr Harrison. A special thank you goes out to Stephanie Grey for her contributions to this article.