Posternak Blankstein & Lund LLP is now Arent Fox. Read the press release

The EEOC Updates Its COVID-19 Guidance

Yesterday, the Equal Employment Opportunity Commission updated and expanded its March 17th and 18th guidances on legal issues related to the COVID-19 pandemic.  

View the new technical assistance here and view the EEOC FAQs about COVID-19 here. Below is what you need to know most from the new FAQs.

How much information may I request from an employee who calls in sick, to protect the rest of the workforce during the COVID-19 pandemic?

Follow the experts’ lead, says the EEOC.

As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when questioning employees to determine whether they would pose a direct threat to health in the workplace. For example, additional COVID-19symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

I’ve long kept medical information about company employees in a separate medical file for each employee. Must I create a new file for each employee to store COVID-19 medical information?

No. According to the EEOC, employers may store all medical information related to COVID-19 in their existing medical files.

If I require the entire workforce to have a daily temperature check before entering the workplace, may I maintain a log of the results?

“Yes”, says the EEOC. But, employers must keep that information confidential.

If I learn that an employee has COVID-19, may I disclose his or her name to a public health agency?

Again, according to the EEOC, the answer is “yes”.

May the temporary staffing agency or contractor that places employees in my workforce tell me if it learns that the employee has COVID-19?

Yes, again. That’s because the employer may need to determine if the infected employee has had contact with anyone in the workplace.

May I postpone the start date or withdraw a job offer because the hiree is 65 years old or pregnant, both of which place the individual at higher risk from COVID-19?

No. The CDC has said that such individuals are at greater risk of contracting the illness. That does not, however, justify unilaterally postponing their start date or withdrawing a job offer. An employer may, though, allow high-risk new hires to telework or explore whether they would like to postpone their start date.

If a job may only be performed at the workplace, are there reasonable accommodations that can protect an employee who, due to a preexisting disability, is at higher risk from COVID-19? 

Yes. Accommodations for employees who request reduced contact with others, due to a disability, may include changes to the work environment such as designating one-way aisles; using Plexiglas, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance, and other accommodations that reduce chances of exposure.

Employer and employee flexibility is important in determining if an accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to safely perform a job’s essential functions while reducing exposure to others in the workplace or while commuting.

An employee has a preexisting mental illness or disorder that the COVID-19 pandemic has exacerbated. May he or she be entitled to a reasonable accommodation?

Many people feel significant stress due to the COVID-19 pandemic. But, as the EEOC explains, employees with certain preexisting mental health conditions, e.g., anxiety disorder, obsessive-compulsive disorder, and post-traumatic stress disorder, may find it more difficult to cope during the pandemic.

As with any accommodation request, employers may question an employee who seeks an accommodation for a mental health condition to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist the employee and enable the employee to keep working; explore alternative accommodations that may effectively meet the employee’s needs; and request any needed medical documentation. 

I require all company employees to telework during the pandemic. Should I postpone the interactive process with an employee who won’t need the accommodation until mandatory telework ends?

Not necessarily. Says the EEOC, an employer may give higher priority to discussing accommodation requests for teleworking. But, the employer may begin discussing the request for post-telework accommodations. Doing so may enable the employer to acquire all the information that it needs to make a decision. And, if the employer grants the request, it also may be able to arrange for the accommodation in advance.

What if an employee was receiving a reasonable accommodation before the COVID-19 pandemic and now requests an additional or altered accommodation?

That employee may be entitled to additional or altered accommodation. For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what he or she uses in the workplace. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.

What practical tools are available to employers to reduce and address workplace harassment that may arise due to the COVID-19 pandemic?

According to the EEOC, employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, such as their national origin, race, etc.

Also, the EEOC provides practical anti-harassment tools that small businesses can access here:

  • Anti-harassment policy tips for small businesses
  • Select Task Force on the Study of Harassment in the Workplace (includes detailed recommendations and tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated): 
    • Report;
    • Checklists for employers who want to reduce and address harassment in the workplace; and,
    • Chart of risk factors that lead to harassment and appropriate responses.

Under the EEOC's laws, what waiver responsibilities apply when an employer is conducting layoffs?

Special rules apply when an employer is offering employees severance packages in exchange for a general release of all discrimination claims against the employer. More information is available in the EEOC's technical assistance document on severance agreements.

In response to inquiries from the public, the EEOC has provided additional resources on its website related to the pandemic.


Continue Reading