Employer COVID-19 Screening Measures and Employee Return to Work After Contracting COVID-19
EEOC guidance provides that employers covered by the Americans with Disabilities Act (ADA) may inquire of employees whether they are experiencing symptoms of COVID-19 as identified by the EEOC, Centers for Disease Control (CDC), other public health authorities, and “reputable medical sources for guidance on emerging symptoms associated with the disease.” Note, that the information gleaned from these inquiries must be maintained as a confidential medical record in compliance with the ADA. Although measuring an employee’s body temperature constitutes a medical examination, the EEOC has stated that employers may due so because of COVID-19’s community spread. However, the EEOC notes that “employers should be aware that some people with COVID-19 do not have a fever.”
Employers may require employees that become ill with COVID-19 symptoms to leave the workplace. The EEOC also recognizes that employers may require a doctor’s note certifying fitness for duty when employees return to the workplace. However, the EEOC cautions employers that medical professionals may be too busy to provide these certifications, and advises that “new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that the individual does not have the pandemic virus.” Furthermore, the EEOC recognizes that employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if the employee has the virus.
Confidentiality of Medical Information
The EEOC cautions employers that the ADA requires medical information about employees to be stored separately from their personnel file; COVID-19 related medical information may be stored in existing medical files. Employers must also keep daily temperature checks confidential. However, an employer is permitted to disclose to a public health agency the identity of an employee that has contracted COVID-19. Staffing agencies are also permitted to disclose the identity of employees that contracted the coronavirus to their employers for contact tracing purposes.
Hiring and Onboarding
Under EEOC guidance, employers are permitted to screen job applicants for COVID-19 symptoms after making a conditional job offer, provided that the employer screens all employees in the same type of job. Employers may delay the start dates of employees that have contracted COVID-19 or have symptoms associated with it. The EEOC has advised that employers may withdraw job offers for applicants where the employer’s need for the employee to start is immediate. Finally, employers may not postpone start dates or withdraw job offers from individuals merely because they are at higher risk from COVID-19. Employers are free to allow (but not require) employees at high-risk to telework and may discuss whether those individuals would like to postpone their start dates.
The EEOC issued a plethora of guidance related to reasonable accommodations. It is beyond the scope of this alert to detail each individual guidance provided by the EEOC related to reasonable accommodations. However, the common thread to all of the EEOC guidance is that employers must still engage in the interactive process with employees requesting accommodations related to COVID-19 or non-COVID-19 related accommodations that are nonetheless requested during the pandemic. The EEOC recommends certain accommodations that could be made—like erection of plexiglass barriers—that are inexpensive and noncontroversial. However, the EEOC recognizes that circumstances related to the pandemic could influence whether accommodations are granted because of undue hardship. Given the individualized nature of reasonable accommodations, we recommend that employers consult with their legal advisors if the employer has any questions as to whether the accommodation is reasonable or feasible under the current conditions.
Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics
The EEOC advised employers that it may be helpful to communicate to their workforce that fear of the COVID-19 pandemic should not be misdirected against individuals based on a protected characteristic, including race, national origin, color, sex, religion, age, disability, or genetic information. Practically, it may be helpful for employers to communicate to their workforce that claims of discrimination or harassment will be reviewed promptly and appropriate action will be taken as quickly as possible.
The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.
Author Gregory Sellers is an associate in the labor and employment practice group at Klehr Harrison.