On Friday, March 27, 2020, the Equal Employment Opportunity Commission (EEOC) released a webinar addressing questions about the interrelation between federal disability discrimination laws and employer responses to the COVID-19 pandemic. The webinar supplements two COVID-19 related publications previously released by the EEOC—a March 19, 2020, webpage titled “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” and a March 21, 2020, update to the EEOC’s pandemic preparedness guidance, which was originally issued in response to the H1N1 pandemic in 2009. While federal antidiscrimination laws continue to apply during the COVID-19 pandemic, the EEOC stresses that those laws do not interfere with an employer’s ability to follow guidelines issued by the Centers for Disease Control and Prevention (CDC) or state and local health authorities. The EEOC’s updated guidance includes key considerations related to hiring new employees, protecting current employees, and bringing employees back to work.
While much of the workforce is retracting, companies providing essential services are staffing up to meet increased demand. For these employers, ensuring that new hires do not spread COVID-19 to their workforce is critical. The EEOC has clarified that employers are permitted to screen job applicants for COVID-19 after making a conditional offer of employment without violating the Americans with Disabilities Act (ADA), so long as the employer does so for all entering employees in the same type of job (employers remain prohibited from making disability-related inquiries or conducting medical examinations before a conditional offer of employment is made). If an applicant has COVID-19 or associated symptoms, the employer may delay his or her start date or withdraw the conditional offer (if the employer needs someone to start immediately), given existing CDC guidance that individuals with COVID-19 cannot safely enter the workforce.
The EEOC has clarified that employers are able to take a number of precautions to protect employees still physically reporting to work from contracting COVID-19, again based on current guidance from the CDC regarding how to limit community spread.
Employers may take employees’ temperatures before allowing them into the workplace without violating the ADA. Generally, measuring an employee’s body temperature is a medical examination prohibited by the ADA unless done for a permissible purpose, such as determining whether an employee’s medical condition makes them unable to safely perform their essential job functions with or without an accommodation. The EEOC’s updated pandemic guidance expressly states that, based upon the CDC and state/local health authorities’ acknowledgment of COVID-19 community spread, and the attendant precautions that have been recommended as of March 2020, employers may measure employees’ body temperatures. However, the EEOC has cautioned that some people with COVID-19 do not have fevers. Employers who decide to conduct temperature checks should do so uniformly for all employees physically reporting to work unless the employer has a reasonable belief, based on objective evidence, that would justify singling out a specific employee for a temperature check. Also, as with all medical information, the fact that an employee had a fever is would be subject to ADA confidentiality requirements.
Employers may ask all employees physically entering the workplace if they have COVID-19, if they have been tested for COVID-19, if they have symptoms associated with COVID-19 or if they have been in contact with anyone who has been diagnosed with or is experiencing COVID-19 symptoms.1 Employees who have a confirmed case of COVID-19, those who have a fever or other symptoms of COVID-19 or those who refuse to answer the employer’s questions may be excluded from the workplace. Note, however, that as with temperature checks, these measures should be applied equally to all employees physically reporting to work. An employer who singles out a particular employee must have a reasonable belief based on objective evidence that the person may have the disease (for example, if the employer has noticed that a particular employee has a persistent cough). Employers generally should not ask similar questions of employees who are teleworking and not physically interacting with coworkers, given that the same workplace safety concerns are not implicated.
According to the EEOC’s guidance, employers may disclose limited information about an employee who tests positive for COVID-19 or has associated symptoms. A supervisor who learns of an employee’s actual or potential COVID-19 diagnosis may report the information to the appropriate employer officials, so that the employer can take appropriate action with respect to the rest of the workforce and notify public health authorities. However, disclosure of the individual employee’s identity should be limited to those who need to know, such as to a designated person who can interview the employee about who he or she has come into contact with in the workplace. Employers may then notify the affected employees of their potential exposure, without revealing the identity of the diagnosed employee.
While not endorsed in the EEOC’s guidance, employers may have some flexibility if the employee discloses his or her diagnosis voluntarily. The ADA requires that employers maintain as strictly confidential medical information received from an employee in response to an employer’s medical inquiry (such as an employer asking questions to determine whether an employee has COVID-19 or an employer requiring all employees to report to the employer if they test positive for the virus). However, courts have found that the confidentiality obligation does not extend to medical information or a medical diagnosis that an employee voluntarily discloses to the employer. Likewise, although employers cannot require an employee to agree to the disclosure of his or her COVID-19 diagnosis, the employer can ask for employee consent to the disclosure if done in a manner that is purely optional and cannot reasonably be construed as a requirement. Obviously, this is a sensitive area and employers should proceed with caution. Employers also should consider any state privacy laws that may come into play.
Finally, with respect to medical information that is obtained in response to an employer inquiry, the EEOC’s guidance cautions that the ADA’s confidentiality requirements continue to apply to managers and supervisors who obtain medical information while working remotely. For example, the employer should electronically store medical information in online locations that other employees cannot access. Similarly, supervisors and managers may want to use an employee’s initials rather an employee’s full name in written materials to provide additional safeguards of electronically stored confidential medical information.
While employers have a duty to provide a safe working environment to all employees, during the current pandemic employers may be particularly concerned about employees who are at a higher risk of serious illness from COVID-19. However, employers remain limited in their ability to protect vulnerable employees against their will. For example, the EEOC’s guidance makes clear that employers may not require that employees who are over the age of 65 stay out of the workplace simply because the CDC has identified this age group as being at higher risk. Doing so would violate the Age Discrimination in Employment Act (ADEA). Similarly, an employer may not make furlough or layoff decisions based on which employees fall into a high-risk category.
An employer also may not ask employees who are asymptomatic whether they have a medical condition that would place them in a high-risk category unless the inquiry is made for a permissible purpose under the ADA. For example, when an employee in a high-risk category that is considered a disability under the ADA requests an accommodation (such as telework) to minimize the risk of contracting COVID-19, the employer has an obligation to provide a reasonable accommodation so long as doing so would not cause an undue hardship on the employer. The EEOC advises that given current circumstances, employers and employees should both try to be as flexible and creative as possible when engaging in the interactive process. Employers should, however, consider how accommodations granted in response to COVID-19 may affect their accommodation obligations after the pandemic ends. For example, while the EEOC states that an employer allowing telework in response to COVID-19 is not automatically required to grant telework to every disabled employee once the pandemic ends, the agency also states that temporary telework granted in response to COVID-19 may be relevant to considering renewed requests made later on. COVID-19 telework could serve as a trial period for determining whether the employee was able to perform the essential functions of his or her job while working remotely.
At some point the COVID-19 pandemic will end, and employees will begin to return to their physical workplaces. The EEOC’s guidance states that employers may require employees who have been away from the workplace during the pandemic to provide a doctor’s note certifying fitness to return to work. Practically, however, given the demands on health care workers during and immediately after the pandemic, employers may need to consider other documentation that would provide similar assurances, such as a stamp or email from a local clinic.
The EEOC’s full guidance is available here, here and here.
1 While an employer can ask generally whether an employee has been in contact with someone who may have COVID-19, specifically asking whether the employee’s family members have COVID-19 or related symptoms may violate the Genetic Information Nondiscrimination Act (GINA).