The Equal Employment Opportunity Commission Weighs in on COVID-19

The Equal Employment Opportunity Commission (EEOC) issued a public statement on its website on Wednesday, March 18, 2020, providing updated guidance on acceptable employment practices in light of the ongoing COVID-19 pandemic. The statement highlights common questions employers may have regarding how to manage employee issues related to COVID-19 and provides guidance.

The EEOC’s statement clarifies that employers are permitted to ask employees if they are exhibiting symptoms of COVID-19 and may require employees who are exhibiting those symptoms to stay home from work. Employers may also delay the start date of or withdraw a job offer from a future employee who has or is exhibiting symptoms of COVID-19.

The most notable piece of information from the EEOC’s release is the Commission’s stated position, given the CDC’s warnings regarding the dangers of COVID-19 and community spread, employers may measure employees’ body temperature. Generally, taking an employee’s temperature is considered by the EEOC to be a medical examination and is therefore prohibited absent specific circumstances. However, given the crisis, employers are now permitted to measure employees’ temperature (although the EEOC notes many individuals with COVID-19 will not have an elevated temperature). 

The EEOC’s guidance also clarifies that the ADA allows employers to require doctors’ notes certifying fitness for duty before an employee returns to work from a pandemic-related absence. The EEOC indicates such inquiries are permitted under the ADA because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries. The EEOC notes health care professionals may be too busy during and immediately after the pandemic outbreak to provide fitness-for-duty documentation. Accordingly, employers may need to rely on local clinics to provide a form, a stamp, or an e-mail to certify an individual does not have the pandemic virus.

Additionally, all employers should continue to be aware that the discriminatory application of COVID-19-related questioning or policies, including measuring employees’ temperature, based on any federally protected class (such as age or national origin) remains prohibited by law and would subject the offending employer to legal penalties.

To review the EEOC’s March 18, 2020 statement, click here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

The law on permissible employment practices in the face of this pandemic is changing on a daily basis and may vary significantly depending on the industry in question or the state in which the employer is located.  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.