What Employers Can and Cannot Do According to Updated EEOC Guidance Regarding Covid-19

On April 9, the EEOC issued updated guidance on Covid-19 and the federal laws which protect employees with disabilities from discrimination. Given the public health crisis Covid-19 presents, employers are permitted to make decisions and ask questions of employees to ensure workplace safety that may not have passed muster before. However, the anti-discrimination laws, particularly the Americans with Disabilities Act (ADA) remain in full force and effect. As a result, employers must tread carefully with respect to what they ask of their employees to ensure that they do not violate the ADA during this pandemic.

Here are the some of the key aspects of the updated EEOC guidance.

Screening Employees at Work

Employers are permitted to ask employees entering the workplace if they have exhibited symptoms associated with Covid-19. The EEOC has expanded the list of symptoms that employers can ask about. An employer is permitted to ask such expanded queries as Covid-19 is now deemed to be a “direct threat” to health in the workplace under the ADA.

Also, employers are permitted to require a doctor’s note from an employee certifying that they are fit to return to duty. The guidelines acknowledge that, as a practical matter, it may not be possible for an employee to obtain such documentation from a doctor or health care professional. New approaches are proposed to certify that an employee does not have Covid-19. Whether these alternative proposals can be effectuated is another matter entirely.

Confidentiality of Medical Information

Employers are required to maintain the confidentiality of employee information related to Covid-19, separate and apart from an employee’s personnel file – for example, whether they had Covid-19 or reported they had the symptoms. This includes temperature check information regarding the employee. However, an employer is permitted to reveal the name of an employee to a public health agency if they learned the employee has Covid-19. Thus, the confidentiality measures are not absolute.

Job Offers

An employer cannot postpone the start date or withdraw a job offer because the candidate is 65 years or older or pregnant, categories of individuals who are at higher risk. However, an employer may choose to allow remote work or discuss with these new incoming employees if they would like to postpone the start date.

Reasonable Accommodation

The updated EEOC guidance provides advice to employers and employees about what likely is or is not permissible regarding the handling of reasonable accommodation requests from employees with disabilities. The key words here are “undue hardship”.  An employee can request a reasonable accommodation due to their disability, whether it is physical or mental health based. The employer is required to provide a reasonable accommodation so long as it does not cause an “undue hardship” (in terms of cost mainly) on the employer. The EEOC guidelines include examples of accommodations for employees who, due to a preexisting disability are at a higher risk from Covid-19 and request an accommodation to eliminate possible exposure.

Also, existing accommodations can be altered for employees due to the current pandemic situation, and new accommodations can be implemented. Employers can ask questions – especially for new requests for a reasonable accommodation – to determine whether a condition is a disability, can ask for medical documentation if needed, and can also ask how the requested accommodation would help the employee to undertake his/her essential job duties.

Pandemic-Related Harassment Due to National Origin or Race

Employers are advised to reduce the chance of harassment by explicitly communicating to their workforce that fear of Covid-19 should not be misdirected against employees who are members of protected categories. In short, that means that employers need to, and must, be proactive in ensuring that their employees are not subjected to harassment, based on national origin, race or other prohibited bases, due to  Covid-19. The guidance contains practical anti-harassment tools for small businesses.

 

If you believe that you may have been subjected to discrimination, please know that options are available to you to address it. Please feel free to contact me for help. I can be reached at (917) 613-1032 or sql@meenanesqs.com

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