EEOC Endorses More Aggressive Employer Action to Address COVID-19

March 18, 2020 Advisory

Recognizing the unprecedented challenges employers face in confronting the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has issued new guidance expanding the ways employers can address suspected cases of COVID-19 within the workforce.

Medical Exams and Inquiries
The Americans with Disabilities Act (ADA) prohibits employers from performing or requiring “medical examinations” of employees and making disability-related inquiries to employees. As noted in a previous AT advisory, even in the context of a pandemic (such as the 2009 H1N1 outbreak), the EEOC has been unwilling to give employers much flexibility in complying with these restrictions. However, the EEOC has now advised that exceptions will be permitted for employers facing the unique risks posed by the COVID-19 pandemic:

  • Employers can measure an employee’s body temperature. The EEOC has announced an exception to its typical guidance against taking an employee’s temperature as being a “medical examination” that would likely violate the ADA. In its recently updated coronavirus guidance, the EEOC advised: “Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.” Of course, this guidance is limited to the current extraordinary circumstances, so employers should not assume that measuring body temperature will be allowed after the current pandemic has subsided. Furthermore, if an employer chooses to take an employee’s temperature, the person administering such testing should be trained to practice proper hygiene in the process, and the body-temperature information should be maintained by the employer as a confidential medical record.
  • Employers can ask employees if they are experiencing COVID-19 symptoms. Although medical inquiries are generally prohibited under the ADA, the EEOC has clarified that, during the COVID-19 pandemic, employers are free to ask whether employees are experiencing “symptoms such as fever, chills, cough, shortness of breath, or sore throat.” If an employer collects this information, though, it must be maintained as a confidential medical record in compliance with the ADA.
  • Employers can require fitness-for-duty certification for employees who wish to return to work following sickness. The EEOC has explicitly endorsed an employer’s right to demand a fitness-for-duty certification before allowing an employee to return to work from an illness-related absence during a pandemic. Notably, however, if an employee’s absence is Family and Medical Leave Act (FMLA)-qualifying, an employer should be careful to comply with the FMLA’s fitness-for-duty certification rules when seeking such certification from employees who wish to return to work during a pandemic. Under the FMLA, an employer may request a fitness-for-duty certification only with regard to the particular health condition that caused the employee’s need for FMLA leave. Furthermore, if the employer requires such certification, it must provide notice of that requirement in the employer’s FMLA designation notice. It should also be noted that, although the EEOC has endorsed as lawful an employer’s decision to require a doctor’s note for returning employees, the CDC has advised against such a requirement due to the difficulty many employees may face in obtaining medical documentation from busy health care providers.

While employers should feel free to utilize the measures that the EEOC has identified as lawful to combat the spread of COVID-19, in doing so, employers should continue to observe the following obligations and restrictions:

  • Warn Employees of Known Risks. Under the Occupational Safety and Health Act (OSHA) general duty clause, employers generally must provide work environments free from known risks of serious physical harm or death. This includes investigating and addressing known health risks in the workplace and informing employees that such risks exist. Thus, if an employer learns that someone with COVID-19 has been on the employer’s premises, this basic information should be disclosed to employees working in areas where the exposure occurred.
  • Observe Confidentiality. The ADA and the Genetic Information Non-Discrimination Act (GINA) prohibit most disclosures of employee health information and the health information of an employee’s family members. Thus, the names and other personally identifiable information of employees and their family members who have COVID-19 should not be included in company warnings about suspected or known COVID-19 exposure in the workplace. Simply put, an employer should advise the workforce that a co-worker has tested positive for COVID-19 and warn those with whom the employee may have been in close contact without disclosing the name of the infected employee.
  • Avoid Prohibited Inquiries about Family Illness. GINA generally prohibits employers from asking employees questions about the health of their family members. Thus, employers should refrain from asking an employee to disclose whether anyone in his or her family has tested positive for COVID-19 (or any other disease).

The legal landscape associated with the COVID-19 pandemic is evolving almost as quickly as the pandemic itself. Armstrong Teasdale’s Employment and Labor attorneys will continue to monitor and provide updates regarding these developments. For additional information, please visit Armstrong Teasdale’s COVID-19 Resource Center.

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