The U.S. Equal Employment Opportunity Commission (EEOC) has updated its previously published guidance entitled “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act” to provide information and examples to help employers implement strategies to navigate the impact of COVID-19 in the workplace. This new guidance, dated April 9, 2020, confirms that COVID-19 constitutes a “direct threat” and may pose a significant risk of substantial harm if someone with COVID-19, or symptoms of it, is present in the workplace. It also identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic.
The EEOC’s guidance addresses common questions that employers may find helpful in their attempt to keep their workplaces safe while dealing with the COVID-19 pandemic. Some highlights:
The ADA does not prohibit employers from asking employees if they are experiencing symptoms of the pandemic virus, such as fever, chills, cough, shortness of breath, or sore throat. However, ADA covered employers must maintain all information about employee illness as a confidential medical record.
An employer may measure employees’ body temperature when they physically enter the workplace.
Employers may ask employees if they have COVID-19, or symptoms associated with COVID-19, or if they have been tested for COVID-19.
While the Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about an employee’s family members, employers may ask more generally if the employee has had contact with anyone diagnosed with COVID-19 or who was showing symptoms of COVID.
An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace as their presence would pose a direct threat to health or safety. For teleworking employees not physically interacting with coworkers, the employer would generally not be permitted to ask these questions.
An employer may not decide to layoff or furlough a pregnant employee or an employee aged 65 or older who does not have COVID-19 or symptoms solely based on the CDC guidance that pregnant women or older people are more likely to experience severe symptoms and should be monitored
Employers may not single out employees based on national origin and exclude them from the workplace due to concerns about possible COVID-19 transmission.
See the above embedded links for more details on specific questions answered by the EEOC’s guidance.
This summary is informational and should not be considered legal advice from our firm. Employers are advised to consult with counsel to ensure the administration of any workplace measures fall within EEOC’s guidance and do not otherwise violate applicable law.