The EEOC continues to fine tune its guidance regarding the interplay between COVID-19 and the Americans with Disabilities Act, the Rehabilitation Act, and other equal employment opportunity laws.
Six guidelines of particular importance for employers are summarized below from the full EEOC guidance:
1. Employers are entitled to ask why an employee did not report to work. If an employee reports sickness, the employer may ask the employee if they are experiencing symptoms of COVID-19. This inquiry does not violate the Americans with Disabilities Act (ADA).
2. Employers can ask employees whether they had close contact with anyone who has COVID-19 or its symptoms, but may not ask whether the employee’s family members have COVID-19 or its symptoms (or other medical questions about the employee’s family).
3. Employers can require employees to take COVID-19 tests (but not antibody tests) before allowing employees to return to the workplace and/or periodically to screen for COVID-19. Employers are also allowed to take employees’ temperatures.
4. Employers need to keep medical information (including symptom screening questionnaires, temperature logs, and COVID-19 test results) confidential and stored separately from employee personnel files.
5. Employers do not necessarily need to provide the same ADA accommodations to employees who are temporarily teleworking at home due to COVID-19, as opposed to working in the workplace. However, employers still are required to engage in the interactive process with the employee, and determine whether a particular request for an accommodation poses an undue hardship or not.
6. Employers may (but are not required to) provide additional flexibility to employees over age 65 due to their higher risk of severe illness from COVID-19. Such employees must be free to voluntarily decide whether to take advantage of these options. Employers may not refuse to allow these employees to return to the workplace, as doing so would violate the Age Discrimination in Employment Act.
The EEOC’s guidance regarding the COVID-19 pandemic is valid during the time of the pandemic and may change as the pandemic evolves.
Meredith S. Campbell Chair, Employment and Labor Group
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