EEOC Expands Guidance Regarding COVID-19 and EEO laws

On April 9, the EEOC updated its technical assistance document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, which includes the information below. See the link for complete guidance.

Disability-Related Inquiries and Medical Exams

When screening any employees entering the workplace during this time, an employer may ask employees about any symptoms identified by public health authorities as associated with COVID-19. As public health authorities and doctors learn more about COVID-19, they may expand the list of related symptoms.  Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease.

Confidentiality of Medical Information

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information.  An employer may store all medical information related to COVID-19 in existing medical files.  This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms. It also includes a log of daily temperature checks.

Additionally, it states an employer can disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.

Hiring and Onboarding

The EEOC said that an employer might not postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19. The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer—but the employer may want to permit telework or discuss with these new hires whether they would like to postpone the start date.

Reasonable Accommodation

If a job may only be performed at the workplace, there may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure.  Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs temporarily without causing undue hardship on the employer.

Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform the essential functions of the job safely while reducing exposure to others in the workplace or while commuting.

In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics

Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.