EEOC Issues Updates to COVID-19 Technical Guidance
By Kelly A. Trainer, Katy A. Suttorp, and N. Richard Shreiba Burke, Williams & Sorensen, LLP
Since the passage of the Families First Coronavirus Relief Act (“FFCRA”), the Equal Employment Opportunities Commission (“EEOC”) has been providing ongoing guidance to the public to assist in interpreting the various complexities of the FFCRA. As part of those efforts, the EEOC’s What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws (“Guidance”) guidance has been updated several times over the past few months. The EEOC provided another update to the Guidance on September 8, 2020. The following provides a summary of the recent key updates to the Guidance. Employers should be mindful that this is only a summary of the EEOC Guidance. California employers must simultaneously adhere to California law as well. The Department of Fair Employment and Housing (“DFEH”) has previously issued guidance under the Fair Employment and Housing Act (“FEHA”).
COVID-19 Testing of Employees
Many employers have implemented various workplace safety protocols as employees return to the workplace. Some employers have opted for a COVID-19 testing requirement as a key feature of their workplace protocols. While normally such tests would potentially violate employee’s privacy and certain provisions of the Americans with Disabilities Act (“ADA”), the Guidance clarifies that we are in anything but normal times. Citing recommendations from the Center of Disease Control (“CDC”) and other public health authorities regarding testing and screening, the Guidance reiterates that the ADA does not interfere with testing administered consistent with current CDC guidance. The Guidance explains that since an individual with the virus poses a direct threat to the health of others, employers may take screening steps to eradicate that threat. Essentially, the threat of virus transmission solidifies the job relatedness of the test itself, and administering the test consistent with CDC guidelines will meet the ADA’s “business necessity standard.” Further, the most recent updates to the Guidance permit employers to “periodically” test employees to determine if their “continued presence” poses a direct threat to others.
As a practical matter, employers should ensure that they are using tests and protocols approved by public health authorities. Moreover, employers should maintain a reasonable policy that allows for re-testing in certain circumstances to account for the incidence of false-positives or false-negatives.
Inquiry Regarding Symptoms and Temperature Screening
One of the most commonly-used return to work protocols is a symptom screening and/or a temperature screening. Many workplaces have a symptom questionnaire and/or a touch-free thermometer to determine if an individual has a fever. The Guidance unequivocally provides that employers may ask all employees returning to the workplace if they have COVID-19 or symptoms associated with it, and ask if they have been tested for COVID-19. This questionnaire-style screening is strictly applicable to employees who are returning to work in person and does not extend to employees who continue work remotely.
In some circumstances, an employer may be inclined to perform symptom screening on a specific employee rather than the entire workforce. The EEOC stated that such approach is permissible so long as the employer has “a reasonable belief based on objective evidence” that the employee might have COVID-19. One example would be if an employer does not have a broad screening policy, but an employee is exhibiting COVID-19 symptoms. The Guidance again reiterates that the ADA does not constrain employers when following public health authorities’ recommendations.
As a practical matter, employers should take reasonable steps to protect the privacy of the employee during any screening, and should also take reasonable steps to protect the privacy of any medical information collected from the employee.
The Guidance also addresses the appropriateness of an employer inquiring about COVID-19 symptoms of an employee’s family members. The Genetic Information Nondiscrimination Act (“GINA”) prohibits an employer from asking such a question about family members specifically, an employer is nevertheless permitted to ask employees more generally whether they have had contact with anyone recently diagnosed with COVID-19 or with anyone who has had symptoms associated with COVID-19.
The Guidance recognizes that some employees may not be cooperative when it comes to symptom screening. Recognizing the seemingly intrusive nature of these and other workplace protocols, employers may want to consider an empathetic approach to start the conversation with such employees. Employers should ask employees about their concerns regarding symptom screening. Employers may provide employees with reassurances regarding the privacy of their health information, and share the overall benefits of having a cohesive workplace where everyone strives for optimal health and safety for each other. However, if the employee remains uncooperative, the Guidance explicitly states that the employer may exclude an uncooperative employee from the workplace. Employers may continue to offer such employees the option to telework, if feasible.
The Guidance also advises employers that they have the ability to ask each employee returning from travel about their whereabouts and screen those employees for symptoms. Public health authorities may recommend that individuals traveling to certain areas self-isolate for a specific period of time upon returning from such locations. An employer is then entitled to ask an employee if the employee traveled to such location, and request the employee to not report to the workplace consistent with guidance from public health authorities.
Confidentiality of Medical Information
Confidentiality issues are atop the list of concerns regarding workplace protocols. Whether it is a COVID-19 test or a symptom screening, employers and employees both have concerns regarding custody of such detailed medical records. The Guidance reminds employers that they are required to follow ADA guidelines and maintain strict confidentiality of all medical information. However, a manager is entitled to report a positive test or a positive screening questionnaire to appropriate employer officials so that they can take action consistent with guidelines from public health authorities. As an employer, documenting who is the custodian of such information will help eliminate confusion and minimize liability.
The employee’s identity must remain confidential when sharing required information with the workforce. Even in small workplaces where other employees may deduce the employee’s identity, the employer must not confirm the employee’s identity if asked by other employees. A reasonable approach for employers is to provide generic information such as “someone in the building” or “someone on this floor” tested positive or reported symptoms.
Another key point in the confidentiality section of the Guidance addresses whether employees are permitted to report colleagues who have symptoms but fail to disclose such symptoms during the screening process. The Guidance states that the ADA does not prevent employees from sharing this type of information with their supervisors. After receiving such reports, the supervisor should then follow the appropriate steps in the employer’s return to work protocols to ensure the health and safety of all other employees in the workplace.
Reasonable Accommodation for Disability
One situation that employers will likely encounter as more workplaces reopen is the employee who wishes to continue working remotely. Employers may have granted employees the option to work remotely when the employer needed to decrease the number of employees in the workplace or during a government-mandated shut down. Some employees may view this temporary arrangement as an invitation to request a permanent remote work arrangement. However, employers are not required to grant permission to all employees who request to continue remote work arrangements once the employer reopens the workplace.
As an important exception, under the ADA, employers would be obligated to consider whether remote working is a potential reasonable accommodation for an employee with a disability. In those circumstances, an employer is entitled to learn of any disability-related restrictions before granting any reasonable accommodation. If the employee does not have a disability that necessitates a remote working arrangement, the employer does not have to grant such requests under the ADA.
A key point in this scenario is that some employers may have temporarily modified an employee’s job duties during the pandemic. Once an employer reopens the workplace, the employer is entitled to restore its workplace operations to previous levels. On that basis, some employees may not be able to perform their essential job functions remotely, and thus they must report physically to the workplace. Accordingly, upon receiving a request to work remotely, the employer should determine the reason for the request. If it is because of disability-related concerns, the employer is obligated to engage the employee in a good faith interactive process to determine what accommodation(s), if any, are reasonable to allow the employee to perform their essential job functions.
In closing, the Guidance continues to expand and provide additional details to both employers and employees. As the pandemic continues and government emergency orders remain in place in many jurisdictions, it is imperative to stay in touch with your labor and employment counsel or regional risk manager to ensure your compliance with this rapidly changing and growing area of law.
 The most recent version of the Guide is available here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term< Back to Full Issue Print Article