Since March of this year, the Equal Employment Opportunity Commission (EEOC) has released guidance on a near-monthly basis addressing various FAQs concerning COVID-19 issues. The guidance has focused on disability-related inquiries, confidentiality, hiring, and reasonable accommodations under the Americans with Disabilities Act (ADA), as well as issues under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA). In its latest FAQ update posted yesterday, the EEOC covers some more practical questions employers have on several COVID-19 issues, such as testing, telecommuting, and sharing employee medical information.
As COVID-19 testing capabilities and resources have expanded, many employers across the country have been working on establishing testing protocols. Some still have concerns, however, about whether they are permitted to test, particularly considering the general ADA requirement that any mandatory medical test of employees be “job related and consistent with business necessity.”
The EEOC has already confirmed that employers may opt to administer COVID-19 testing to employees before initially permitting them to enter the workplace. In the updated FAQs, the EEOC further clarified that periodic testing to determine if the employees presence in the workplace is permissible to determine if the employee poses a direct threat to others. In its updated FAQs, the EEOC also sought to address updates to CDC guidance. Specifically, the EEOC made clear that employers administering COVID-19 viral testing consistent with current CDC guidance will meet the ADA’s “business necessity” standard, and that following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. The EEOC acknowledged that the CDC and FDA may revise their recommendations based on new information, and reminded employers to stay up to date.
More on What Employers Can Ask Employees, and If Employees Refuse to Answer
For several months, employers have been building COVID-19 screening programs – taking employee temperatures and asking questions about COVID-19 symptoms and travel, among other things – before permitting employees to enter the employer’s facilities. Some employers have continued to wonder whether they are permitted under the ADA to ask employees whether they have had a COVID-19 test. The EEOC confirmed in the updated FAQs that employers may ask if employees have been tested for COVID-19. Presumably, this also means that employers may ask if the employee’s test was positive or negative, but this is not clear in the updated EEOC FAQs.
Because the permissibility of certain COVID-related requests are based on the existence of a direct threat, asking employees about COVID-19 testing does not extend to employees who are teleworking and not physically interacting with coworkers or others (for example, customers). Asking employees about COVID-19 testing also does not extend to whether the employee’s family members have COVID-19 or symptoms associated with COVID-19. This is because the Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from asking employees medical questions about family members. But, the EEOC clarified employers may ask employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.
The EEOC also further addressed whether employers may focus screening efforts on a single employee – e.g., asking only one employee COVID-19 screening questions. In this case, the employer must have a reasonable belief based on objective evidence that this person might have the disease, such as a display of COVID-19 symptoms. However, employees working regularly or occasionally onsite and who report feeling ill or who call in sick may be asked questions about their symptoms as part of workplace screening for COVID-19, according to the EEOC.
During the summer, several states began to implement mandatory and recommended quarantines for persons arriving in their states from other states with high levels of community spread. The EEOC confirmed that employers do not have to wait until employees experienced COVID-19 symptoms before they may ask employees where they traveled as such questions would not be disability-related inquiries.
As several employers have learned, not all employees cooperate with employer-administered screening programs. When they object, employers should consider their options carefully and whether an accommodation may be necessary. The EEOC acknowledges that the ADA allows employers to bar employees from physical presence in the workplace if they refuse to have their temperature taken or refuse to confirm whether they have COVID-19, symptoms associated with COVID-19, or have been tested for COVID-19. Some employers desire to make compliance with screening programs a condition of employment, subjecting employees to termination from employment if they fail to comply. The EEOC did not discuss that option, however, the agency reminded employers they can gain cooperation by asking employees the reasons for their refusal. They also can offer information and/or reassurance that they are taking steps to ensure workplace safety, that the steps are consistent with health screening recommendations from CDC, and that the employer is careful about maintaining confidentiality.
Managers Sharing Information About Employees with COVID
It is not uncommon for managers to learn about the medical condition of employees they supervise. Because the ADA requires all employee medical information to be maintained confidentially, managers who discover an employee has COVID-19 may be unsure about what they may and/or should do with that information. The EEOC FAQS make clear that managers may report this information to appropriate persons in the organization in order to then comply with public health authority guidance, such as contact tracing. Employers should consider directing managers on where to report this information in order to minimize who receives it, and what to report. However, the EEOC clarified that it would not violate the ADA if a worker reported to her manager the COVID-19 status of a coworker in the same workplace.
Recognizing that coworkers in small workplaces might be able to identify which worker(s) triggered contact tracing efforts, the EEOC reminds employers they still may not confirm or reveal the employee’s identity. For employees that have a need to know this information about other employees, they should be specifically instructed to maintain the confidentiality.
Many employees continue to telework, particularly in occupations where it is feasible to do so. Being away from the office, however, does not eliminate these COVID-19 issues. For example, managers still have to maintain the confidentiality of employee medical information when they are working from home. This includes, where necessary, taking steps to limit access to the information until the manager can return to the office to store the information according to normal protocols. It also includes not disclosing the reason an employee may be teleworking or on leave if the reason is COVID-19.
While many questions remain, these updated FAQs provide some helpful guidance for employers. Of course, certain situations can present additional issues for employers to consider. And, state and local law also may modify the employer’s analysis for those jurisdictions. Employers need to keep up to date and should consult experienced counsel when navigating these issues.