EEOC Offers Guidance to Employers During the COVID-19 Pandemic

The pervasive threat of the COVID-19 coronavirus pandemic, coupled with the ongoing duty to maintain a safe and healthy workplace, has left employers concerned about potential violations of federal anti-discrimination laws. In light of the COVID-19 pandemic, and in an effort to ensure employers remain compliant with workplace anti-discrimination laws (i.e. the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act), the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its 2009 guidance, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” Although the guidance was originally issued in response to the H1N1 outbreak, the latest EEOC update includes recommendations that are specific to the COVID-19 pandemic.

This alert provides an overview of the EEOC’s updated guidance, as well as a discussion about what employers should do to ensure that their COVID-19 related response activities do not run afoul of the federal anti-discrimination laws.

In an effort to protect the workplace against the introduction or spread of COVID-19 coronavirus, the EEOC confirmed that employers can take the following actions without violating the ADA or Rehabilitation Act:

• Infection control practices. Employers may require their employees to adopt infection control practices, such as washing hands and practicing social distancing, as these do not implicate the ADA. The employer can also have employees wear personal protective equipment. However, where the employee needs an accommodation to do so, the employer should provide it, absent undue hardship.
• Questions concerning employee travel. When an employee returns from personal or business-related travel, employers may ask an employee about potential exposure to COVID-19 before allowing the employee to return to work. Employers should always follow the advice of the CDC and state/local public health authorities regarding information needed by an employer to permit an employee’s return to the workplace. Following the advice of the CDC, employers may also require employees who have visited specific locations to remain at home for several days until it is clear they do not have symptoms of COVID-19.
• Questions concerning employee symptoms. If an employee feels ill at work or calls in sick, employers may ask the employee if they are experiencing symptoms of COVID-19, including cough, fever, chills, shortness of breath, or sore throat. This information must be kept confidential in compliance with the ADA.
• Taking employee temperatures. While normally the taking of temperature is a medical examination restricted by the ADA, because the CDC and U.S. health authorities have acknowledged community-spread of COVID-19, employers may measure an employee’s body temperature. The person taking the employee’s temperature should be trained on the procedure and the employer must ensure the temperature reading is kept confidential. Furthermore, health authorities caution, and the EEOC notes, that some people with COVID-19 may not have a fever.
• Requiring an employee to leave the workplace. In conformance with CDC guidance, an employer may require an employee to leave the workplace or to stay home from work if the employee exhibits symptoms or has a confirmed case of COVID-19.
• Returning to work with a doctor’s note. Employers may require employees who are returning to work after a confirmed or suspected case of COVID-19 to provide a doctor’s note certifying their health and fitness for work. Such inquiries are permitted under the ADA because they would not be disability-related or would be justified under ADA standards for disability-related inquiries. Notably, the EEOC and health authorities caution that such a requirement may be overly burdensome on health care providers. Therefore, as a practical matter, employers may wish to rely on local clinics and urgent-care facilities to provide a form, stamp, or email confirming the employee does not have the virus.
• Screening before hire. Employers may screen job applicants for symptoms of COVID-19 after they have made a conditional job offer provided that the employer uniformly implements this screen for all new employees within the same type of job.
• Taking an applicant’s temperature. As part of a post-offer/pre-employment medical examination, an employer may take an applicant’s temperature. As stated above, however, those with COVID-19 do not always have a fever.
• Delaying the start date. Employers may delay the start date of an entering employee who has symptoms or a confirmed case of COVID-19. The CDC has stated that those with the diagnosed condition or who suffer symptoms should not be in the workplace.
• Withdrawing the job offer. As provided in CDC guidance, an individual with a suspected or confirmed case of COVID-19 cannot safely enter the workplace. Therefore, if the employer needs the applicant to start immediately, but the applicant is unable to do so because of a suspected or confirmed case of COVID-19, an employer may withdraw the offer.

Because the World Health Organization (WHO) has declared COVID-19 to be an international pandemic, the EEOC has confirmed that an employer may take the above mentioned actions to combat the introduction and spread of COVID-19 in the workplace; these actions, if uniformly implemented, will not run afoul of the ADA and Rehabilitation Act. However, employers must remember that they are not excused from complying with other provisions of these laws. For example, if a vaccine becomes readily available, the employer must consider whether the employee can be excused from a mandatory vaccination requirement because of an ADA disability or the need for a religious accommodation. As of this date, however, no vaccine is available and the EEOC has not issued guidance regarding exemptions from mandatory vaccinations during the COVID-19 pandemic.

As the COVID-19 pandemic unfolds, employers must continue to monitor the guidance released by the EEOC and OSHA, as well as health agencies, including the CDC and WHO.