EEOC Updates – Return to Work Issues

September 22, 2020

On September 8, The U.S. Equal Employment Opportunity Commission published updated guidance for employers dealing with the COVID-19 pandemic.

Requesting Information from Employees

Employers are permitted to ask why an employee has been absent from work and where employees have traveled. Organizations can also ask whether employees are experiencing COVID-19 symptoms or if they have been diagnosed with the virus if they are reporting to a physical workplace site. Employers may not ask whether an employee’s family member is experiencing COVID-19 symptoms, as asking medical information about family members is prohibited by federal law. However, they may ask whether an employee has come into contact with someone who has COVID-19 or someone who is symptomatic.

Revealing Information about Employees

Employers are not permitted to reveal the identity of an employee who has been diagnosed with COVID-19, as the ADA prohibits sharing employee medical information. However, to enable effective contact tracing and notification, other employees may be told that they have recently come into contact with someone who was diagnosed with COVID-19. While employees may be able to determine who that is in smaller workplace settings, employers are not allowed to confirm guesses as to the sick employee’s identity. Furthermore, employees are permitted to let their superiors know if another colleague is exhibiting COVID-19 symptoms.

Accommodations

Employers whose businesses are resuming workplace activity are not automatically required to provide teleworking to employees as a reasonable accommodation under the ADA, even if the employee has been working from home during the height of the pandemic. An interactive process must be engaged with the employee to determine whether teleworking is a feasible accommodation. However, the employee might consider the telework experience when reviewing new requests.

Delays may be experienced when engaging in the interactive process as a result of COVID-19. Employers and employees are encouraged to be flexible.

Workplace Practices

Supervisors need to take caution if they single out an employee to have their temperature taken or ask only one employee COVID-19 screening questions. The supervisor needs to have reasonable belief that the employee has the virus if they are singling them out from other employees.

Employers may prohibit employees from entering the workplace if they will not consent to screening or will not answer questions about their COVID-19 status and/or symptoms.

Supervisors who have access to confidential employee medical information need to safeguard that information even if working from home, as the ADA requires this information to be stored separately from regular employee records and business information.

Older workers may not be treated less favorably based on age when employers are choosing to offer flexibility. Lastly, employers may not base any adverse staffing decisions based on someone’s membership status in a protected EEOC category.

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