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UPDATES ON COVID-19 BY THE EEOC FOR LABOR AND EMPLOYMENT

As of April 1, 2020, the EEOC has released an updated guide with regards to the Federal Disability Discrimination Laws. The EEOC emphasized guidelines by the Centers for Disease Control and Prevention (“CDC”) may be followed without the risk of violating discrimination laws. While the ADA and the Rehabilitation Act still apply during these pandemic times, the EEOC has clarified Employers are allowed to do the following without violating discrimination laws:

NEW EMPLOYEES:

  • Employers may screen employees and new hires for Covid-19. E.g. Check their temperature;
  • May delay start dates of new hires;
  • Employers such as essential businesses may also screen job applicants for the virus after a conditional offer; An employer must do so for all new employees in the same type of job; and
  • Employer may delay employees start date or withdraw conditional offer if the new employee has Coronavirus or has similar symptoms.

CURRENT EMPLOYEES:

  • Employers may ask employees entering the workplace (1) if they have the virus (2) whether they have been tested for Covid-19, (3) whether they have symptoms, and/or (4) if the employee has been in contact with anyone who tested positive for Covid-19 or anyone who has any associated symptoms. Employees who refuse to answer may be excluded from the workplace. However, Employers cannot require an employee to agree to the disclosure of his or her Covid-19 diagnosis, the employer may ask for the employee’s consent to disclose; it must be optional.
  • Employers may remove employees from the workplace who present a risk of transmitting the virus, who present fever or other associated symptoms of Covid-19;
  • May require temperature checks before entering the workplace but must do so uniformly with all employees whose are physically at the workspace—this is expressly stated in the EEOC’s updated guidelines. The employer may also check the temperature of a single employee if and only if the employer has a “reasonable belief, based on objective evidence” that would justify such action.
  • May notify coworkers, without revealing the identity of the diagnosed employee, who may have been exposed to the virus based on an employee testing positive but only limited information. The number of coworkers must be limited to those who need to know such as a designated person who can interview the employee about who they came in contact with within the workplace.  However, the employer must keep in mind that the fact that an employee had a fever is still subject to ADA confidentiality since it is medical information.
  • May confirm employees returning to work are healthy by requesting a certification by a health care provider. Additionally, even after this pandemic is over, employers may require employees who have been away to provide a doctor’s note to ensure fitness to return to work.

EMPLOYERS CANNOT:

  • Make disability-related inquires or conduct medical examinations before a conditional offer is made.
  • May not require employees over the age of 65 stay out of the workplace, simply because they are at higher risk—this would be in violation of the ADA.
  • May not ask employees who are asymptomatic whether they have a medical condition that would make them high-risk unless permitted by the ADA.
  • Employers may not furlough or terminate employees based on age or high-risk of getting the virus.

The above is subject to change and most likely be updated so Employers shall continue to monitor the CDC guidelines. See: https://www.akingump.com/en/news-insights/eeoc-issues-updated-guidance-on-covid-19-and-federal-disability-discrimination-laws.html. For full guidance on the EEOC updates see: https://www.eeoc.gov/eeoc/newsroom/release/3-27-20a.cfm