EEOC Issues More Guidance on ADA and the Coronavirus
COVID

The EEOC has, yet again, revised its guidance on the ADA and the Coronavirus in the workplace.  In an expanded Q&A (available here), the EEOC provides further guidance designed to protect employees’ medical information and prevent discrimination while allowing employers to continue to comply with the CDC’s guidance regarding protecting workers’ health.  So, what has the EEOC added in the revised Q&A?  (The information contained in the original Q&A is discussed here.)

Questions regarding symptoms
The EEOC clarifies that its prior list of symptoms about which an employer can inquire is not exhaustive.  Employers should rely on the CDC, public health authorities and reputable medical sources for guidance on emerging symptoms of COVID-19 when deciding what medical questions to ask employees to determine whether they are likely to be infected.  For example, newly recognized COVID-19 symptoms include loss of smell or taste, as well as gastrointestinal problems such as nausea, diarrhea and vomiting.

Confidentiality of medical information
As a reminder, pursuant to the ADA, all medical information about an employee must be stored separately from the employee’s personnel file.  Any medical information received regarding COVID-19, such as body temperature readings, can be stored with the employee’s other medical information or in a separate file, but must be kept separate from the employee’s personnel file and must be kept confidential. 

The EEOC clarifies that an employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.  Additionally, a temporary or staffing agency that places workers at an employer’s workplace may inform the employer and disclose the name of the temporary employee if the temporary employee has COVID-19 so that the employer may determine if the temporary employee had contact with anyone else in the workplace.

Hiring and On-Boarding
The EEOC indicates that just because the CDC has identified those 65 years of age or older and pregnant women as being at high risk for complications from COVID-19, an employer may not unilaterally postpone the start date of such an applicant or withdraw a job offer.  An employer, however, may allow telework or discuss with the employee whether the employee would like to postpone the start date. 

Reasonable Accommodations
Employees whose preexisting disabilities make them more vulnerable to COVID-19 complications may be entitled to accommodations to allow them to continue to work.  For example, if an employee’s preexisting mental illness or disorder is exacerbated by the COVID-19 pandemic, it is possible that the employee -- who did not previously need an accommodation -- now might need one.  As with any accommodation request, an employer may ask questions and receive medical information to determine whether the condition is a disability, discuss with the employee how the requested accommodation would assist the employee in performing the essential functions of his/her job, and explore alternative reasonable accommodations that may allow the employee to continue to perform his/her job. 

Nondiscrimination
As a reminder, employers are still responsible for preventing workplace harassment and discrimination based on protected categories such as race and national origin.  (Although the EEOC specifically discusses harassment on the basis of race and national origin, the recommendations apply equally to any other characteristic protected by federal or state law.)  Employers should ensure that they have up-to-date harassment and antidiscrimination policies that have been communicated to their employees.  The policy should provide a clear process for employees to report harassment and discrimination even in situations where employees are teleworking. 

If you have any questions concerning employer rights and obligations during the pandemic, feel free to contact any of the attorneys in our Labor and Employment Law department. 

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