EEOC Weighs in on Employer Duties
The Equal Employment Opportunity Commission (“EEOC”), like other federal agencies, is releasing new guidance on a periodic basis to address issues arising during this pandemic. On April 9, the EEOC updated previously issued technical guidance adding twelve (12) new questions and the answers. The full technical guidance, including this recent update, which is in the form of Questions and Answers addresses issues that arise under the Americans with Disability Act (“ADA”) and the Rehabilitation Act of can be found here.
Several points maybe of significance:
A.2 Symptom Questions Permitted. Despite ADA limitation on medical inquires, employers are permitted to ask employees about symptoms associated with COVID-19 as identified overtime by the CDC and other public health authorities if done to guide them in determining if an employee poses a direct threat to health in the workplace. This inquiry is not limited to just asking about fevers, chills, cough, shortness of breath or sore throat, but can include other symptoms that become identified, like loss of smell and taste.
B.1 & 2 Confidential Information. COVID-19-related information is confidential and can be kept in the company’s regular medical records. There is no need for a separate stand-alone file. If an employer takes daily temperature checks and maintains a log of the results those logs and the information collected is confidential and must be kept as a medical record.
B.3 Limited Disclosure Permitted. An employer may disclose employee’s name to the public health agency if it learns the employee has COVID-19.
B.4 Sharing Information Permitted. Temporary staffing agency and third-party contractors may notify the joint or statutory employer if it learns one of its employees has COVID-19, because the joint or statutory employer needs to determine if this individual had contact with anyone in the workplace.
C.1 Hiring. An employer may not postpone the start date or withdraw a job offer because an individual is 65 years old or pregnant and are at a higher risk for COVID-19 infection, but an employer is permitted to discuss a potential postponement of the start date or offer teleworking.
D.1 Accommodations. Several accommodations were suggested for those who must perform job duties in the workplace but who are at a high risk of infection per CDC Guidance: (i) designated one-way isles, using plexiglass, tables or other barriers to ensure a minimum distance whenever feasible; (ii) temporary job restructuring of less important duties; (iii) temporary transfer to a different position; and (iv) modifying the work schedule or shift assignment in order to allow an individual with a disability to perform while reducing exposure to others in the workplace or while commuting.
D.2 Mental Disabilities. Employers are cautioned and reminded that employees with pre-existing mental illnesses or disabilities (e.g. anxiety disorder, compulsive disorder, PTSD) may have more difficulty handling the disruption in daily life which will be exasperated during the pandemic. In these situations, an appropriate response it to ask questions to determine whether the condition is a disability, solicit input from the employee on how a requested accommodation would assist or enable her to keep working, explore alternative accommodations that may effectively meet the need and then request medical documentation if needed.
D.3 Additional Assistance. If an employee was receiving a reasonable accommodation prior to the pandemic, this does not mean that additional or altered accommodations may not be required. The test as always proof of an undue hardship. For example, an employee who is teleworking may need a different type of an accommodation then what is used in the workplace.
The EEOC also reminded employers that it has a duty to prevent harassment and discrimination that might arise in the workplace when employees act out of fear or bias, and the rules applicable to waivers and releases in separation agreements still apply during the pandemic.