The EEOC Provides Further Guidance During COVID-19

On April 9, 2020, the Equal Employment Opportunity Commission (EEOC) issued Q&As on COVID-19 issues. The EEOC has also updated its guidance during a pandemic for employers relating to the COVID-19 pandemic.  The following are some highlights from these updates.

Medical Inquiries and Exams

In the updated guidance, the EEOC indicated that the COVID-19 pandemic meets the definition of a direct threat.  The EEOC has specifically provided that, in light of COVID-19’s status as a direct threat, employers may:

• Take an applicant's temperature as part of a post-offer, pre-employment medical exam;
• Screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as the employer does so for all entering employees in the same type of job;
• Delay the start date of an applicant who has COVID-19 or symptoms associated with it;
  • But, employers may not postpone a start date or withdraw a job offer because an individual is either pregnant or age 65 or older—even though both are risk factors for COVID-19.  Employers may, however, allow telework for these individuals and/or ask the individuals if they would like to voluntarily postpone their start date;
• Measure employees' body temperatures;
  • Confidentiality: Employers may store the records of employee temperatures with the employee’s other medical files, but these health-related records must be kept apart from the employee’s personnel file;
• Ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19, including asking about:
  • Fever;
  • Chills;
  • Cough;
  • Shortness of breath;
  • Sore throat; or
  • Other symptoms provided by (1) the CDC, (2) “other public health authorities,” or (3) “reputable medical sources”
• Ask employees returning from travel about potential exposure to COVID-19 if consistent with CDC and/or state/local guidelines; and
• Send home an employee with COVID-19 or symptoms associated with it.

Reasonable Accommodations

The EEOC advised that individuals with preexisting disabilities may be entitled to temporary, additional reasonable accommodations during the crisis to reduce the employee’s exposure (i.e., designating one-way aisles or erecting temporary barriers between the employee and the customer to limit transmission).  Furthermore, employees with preexisting mental health conditions may be entitled to reasonable accommodations if their condition is exacerbated by the COVID-19 pandemic, although employers may discuss the proposed accommodation with the employee and request medical documentation if needed.  Finally, the EEOC advised that employers should not necessarily delay conversations about reasonable accommodations needed in the workplace merely because an employee is currently teleworking, but employers may prioritize reasonable accommodation requests needed to enable teleworking over other accommodation requests. 

Reporting and Disclosure

Employers may disclose to public health agencies that an employee has COVID-19.  Additionally, temporary staffing agencies may notify their clients if the staffing agency learns an individual it placed with their client has COVID-19.

Anti-Harassment

The EEOC advised employers to explicitly communicate to employees that they may not misdirect their fear of the COVID-19 pandemic against protected classes of individuals (i.e., blaming one nationality or race for the pandemic and taking adverse employment actions against employees in those protected classes).

• More information can be found in the following links:
• The EEOC updated its 2009 pandemic guidance to include COVID-19 scenarios.
• The EEOC issued a Q&A on COVID-19.

If you have any questions about how to proceed in light of this new EEOC guidance or how to handle employee matters through the COVID-19 pandemic in general, contact your Dinsmore employment attorney.