On September 8, 2020, the Equal Employment Opportunity Commission (EEOC) issued updates to its technical assistance guidance to clarify its position on common workplace issues as businesses begin to resume in-person operations. The guidance appears in question-and-answer format with updates to address workplace COVID-19 testing and inquiries; maintenance of Americans with Disabilities Act (ADA) confidentiality; requests for accommodation; furloughs and layoffs; and age discrimination in flexible work arrangements.
- Permissible workplace COVID-19 tests and
inquiries. COVID-19 testing administered by employers
consistent with current guidance issued by the Centers for Disease
Control and Prevention (CDC), including temperature screenings,
will meet the ADA's "business necessity standard."
Employers may ask all employees who will be physically present
in the workplace if they have or had COVID-19 or symptoms
associated with the virus, but may not ask whether the employee has
a family member who has or had COVID-19 or its symptoms. If an
employee refuses to undergo a temperature screening or answer
questions about whether the employee has COVID-19 or its symptoms,
employers may ask about the reason for the refusal and then, if
applicable, proceed as they would for any other request for an
accommodation under the ADA.
- ADA confidentiality. The ADA requires that an
employer keep all medical information about an employee
confidential and store it separately from personnel files. The
exchange or receipt of medical information during remote work does
not create an exception to this requirement. Managers and
supervisors who receive employees' medical information while
working remotely must continue to safeguard this information in
accordance with the employer's policies. ADA confidentiality
does not prevent co-workers or managers from making necessary and
required internal reports of an employee who has symptoms of
COVID-19 or who has tested positive for the virus. ADA
confidentiality also does not prohibit disclosure that an employee
is working remotely or on leave, but the employer cannot disclose
the reason for the leave.
- Requests for accommodation. Employers are not
required to accommodate every employee with a remote work
arrangement or permanently change essential job functions to enable
a remote work arrangement merely because the employer did so when
it closed its workplace and/or implemented temporary remote work
arrangements to mitigate against the spread of COVID-19. Rather,
employers and employees should proceed as they would for any other
request for an accommodation under the ADA, i.e., engage
in a flexible, cooperative interactive process.
- Furloughs and layoffs. When planning furloughs
and layoffs, employers are reminded that the laws enforced by the
EEOC prohibit the selection of an individual on the basis of a
protected characteristic (e.g., race, color, religion,
sex, age) or in retaliation for a protected activity.
- Age discrimination. Employers may not provide flexibility (e.g., telework, modified schedules) to employees if it results in older, comparable employees being treated less favorably based on age in comparison.
There may be state and local legislative developments that could impact the guidance provided by the EEOC. Employers should consult legal counsel regarding specific circumstances for individualized legal advice on COVID-19-related return-to-work issues.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
