UPDATE: EEOC Updates COVID-19 Technical Assistance Publication with Q&A

Kelley Drye & Warren LLP

The EEOC again updated its Technical Assistance Questions and Answers (Q&A), which we have been following closely, and previously covered on June 11, 2020.

In its most recent update, the EEOC addressed specific questions related to administering COVID-19 tests (Q&A, A.7); permitting employees into the physical workplace, and permissible COVID-19 questions (Q&A, A.8, A.9, A.11, A.12, A.13, and A.14). The EEOC also updated its guidance regarding confidentiality of medical information (B.5, B.6, B.7, and B.8), as well as reasonable accommodations and teleworking (D.8, D.14, D.15, D.16, D.17, and D.18).

Highlights of the updated guidance are provided below:

  • An employer may exclude from the workplace individuals with symptoms associated with COVID-19 because their presence would pose a direct threat to the health and safety of others.  However, for those employees who are teleworking and not physically in the office, the EEOC states that employers would generally not be permitted to ask such employees COVID-19 related questions.
  • ADA confidentiality does not prevent employees from communicating or reporting to their supervisors that another employee has COVID-19 symptoms.
  • If an employee is on leave or teleworking due to COVID-19 symptoms or diagnosis, employers cannot disclose the reason for the leave to other employees.  Employers can inform staff that the employee is on leave without saying why.
  • Employers may invite employees to request any reasonable accommodations they may need in the future when such employees are permitted to return to the workplace.  However, if there is no disability-related limitation that requires teleworking, employers do not have to provide telework as an accommodation.

Employers should continue to be flexible when addressing accommodations and ensure the interactive process is documented.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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