The Equal Employment Opportunity Commission (“EEOC”) recently conducted a webinar regarding employment practices amidst the COVID-19 pandemic. The EEOC stressed that all equal employment opportunity laws still have to be followed and that the laws enforced by the EEOC don’t interfere with guidance issued by the Centers for Disease Control and Prevention (“CDC”) or other public health authorities.
The EEOC analyzed 22 questions during its webinar. Below is a brief review of the first 11 questions covered in the EEOC’s webinar. In Part II of this article, we’ll address the remaining 11 questions.
1) EEOC has explained in the Updated 2020 Pandemic publications that at the present time COVID-19 pandemic permits an employer to take the temperature of employees who are coming into the workplace. Is there anything else an employer could do at the current time to determine if employees physically coming into the workplace have COVID-19 or symptoms associated with the disease?
Employers may ask all employees, who are physically entering the workplace, if they have COVID-19, symptoms of COVID-19, or if they have been tested for COVID-19. Employees with symptoms may be prohibited from the workplace because they impose a direct threat to the health and safety of others. However, employers may not ask similar questions from employees that are teleworking as they are not physically interacting with other employees.
2)What may an employer do under the Americans with Disabilities Act (“ADA”) if an employee refuses to permit the employer to take their temperature, or refuses to answer questions about whether he or she has COVID-19, or has symptoms associated with COVID-19, or has been tested for COVID-19?
Under the current circumstances, an employee may be barred from the physical workplace. However, to gain the cooperation of the employee, the employer may want to ask the reasons why the employee doesn’t want to comply. This may open up communication between the employer and employee.
3) May a manager ask only one employee, as opposed to asking all employees, questions designed to determine if she or he has COVID-19, or require that their temperature be taken?
If the manager has a reasonable belief based on objective evidence, the manager may single out the employee. In light of the COVID-19 pandemic, symptoms associated with the illness, such as a cough or fever, can prompt an inquiry. Employers should ensure that inquiries surround COVID-19 symptoms. For example, an inquiry into whether or not the employee has COVID-19 would be impermissible if the employee merely seems distracted.
4) May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?
Under the Genetic Information Nondiscrimination Act, an employer may not make employment decisions based on the health of an employee’s family member. Therefore, a better question would be to ask whether an individual has had contact with anyone that has been diagnosed or has symptoms.
5) A manager learns and confirms that an employee has COVID-19 or symptoms associated with the disease. The manager knows he or she must report it but is worried about violating ADA confidentiality. What should he or she do?
While the ADA does require the confidentiality of medical information, this information can be reported to the appropriate internal officials. Employers should consider implementing a protocol for such a situation. The protocol should include who should receive such information and what exactly should be reported to the designated official. In all situations, an employer should limit the information and instruct all employees to keep information confidential.
6) An employee who must report to the workplace knows that a coworker who reports to the same workplace has symptoms associated with COVID-19. Does ADA confidentiality prevent the first employee from disclosing the coworker’s symptoms to a supervisor?
No, it is not a violation of the ADA to report a symptomatic individual to a supervisor.
7) An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and the employee is self-quarantining. May the employer tell staff that this particular employee is teleworking without saying why?
While an employer cannot disclose the reason for the leave or telework to other employees, the employer may disclose that the employee is taking leave or teleworking.
8) May employers disclose the name of an individual with COVID-19?
This practice is not recommended. Instead, the employer should inform potentially exposed employees without naming the symptomatic employee.
9) Many employees, including manager and supervisor, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely?
If at all possible, supervisors should follow usual business protocols regarding confidential information. However, if this is not possible, supervisors should try to the best of their abilities to keep the information confidential. The EEOC recommends using a coding system, such as the initials of the symptomatic employee, to keep documentation private.
10) Does the ADA permit employers to notify public health authorities if they learn an employee has COVID-19?
Yes, because COVID-19 is a direct threat to individuals with the disease and those in contact with the infected individual, an employer may notify public health authorities.
The EEOC defines a “direct threat” as a medical condition that poses a significant risk of substantial harm.
11) May an employer exclude from the workplace an employee who is 65 or older and who does not have COVID‑19, or symptoms associated with the disease, solely because the CDC has identified this age group as a higher risk of severe illness if they contract COVID-19?
No, the Age Discrimination in Employment Act prohibits an employer from any type of differing treatment due to the employee’s age, if the employee is over the age of 40.
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We will summarize the remaining eleven questions in Part II of this article, but as the COVID-19 situation is rapidly developing, employers should continue to watch for additional guidance from the EEOC and/or local officials.
If you have any questions on issues discussed in or related to this post, please contact Dana Stutzman at dstutzman@wp.hallrender.com or (317) 977-1425 or your regular Hall Render attorney.
Special thanks to Claire Bailey, law clerk, for her assistance in preparing this article.
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Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
