Q: Has the EEOC issued any guidance during the pandemic?
A: The EEOC has updated its prior pandemic guidelines as of March 19, 2020, to take into account COVID-19 guidance from the CDC. Primary changes relate to the ability of an employer to take the temperatures of both existing employees and those post-offer and pre-hire. While temperature checks continue to be considered a physical exam as defined by the ADA/ADAAA, based on CDC recommendations, the EEOC now considers this practice to be an acceptable business and safety need.
The EEOC also notes that such information must be kept secure in order to be ADA/ADAAA compliant. This clears the way for employers who deem temperature checks necessary as long as they observe some basic confidentiality requirements such as limiting access to the data and storing it in a secure way. As medical exams, these would need to be kept for the same amount of time as other employee medical documentation.
The March 19 changes also allow an employer to rescind an offer if the applicant is needed for immediate work and presents with COVID-19 symptoms. In recognizing the unique issues presented by COVID-19, the EEOC further notes that while standard reasonable accommodation needs to continue for disability issues in the workplace, such discussions are likely to be delayed during the pandemic time period.
NOTE - in an effort to protect their workforce, some employers have recently begun questioning employees about underlying conditions such pregnancy and heart or lung disease. The EEOC continues to state that inquiries of this type are not appropriate as they violate the ADA/ADAAA as well as the Pregnancy Act.
You may tell employees to come to HR with questions or concerns, you may ask about travel, fevers, coughs, and if anyone they encountered is symptomatic. Although OSHA guidance suggests you assess underlying conditions in your workforce, pursuant to the EEOC you MAY NOT question employees about their underlying conditions unless that employee raises that issue with you.
