Pandemic Do’s and Don’ts – the EEOC’s Guide for Employers

March 28, 2020Alerts

The Equal Employment Opportunity Commission (EEOC) posted a webinar on Friday, March 27, 2020 that answers employer queries on the ability to provide a safe workplace while remaining compliant with the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) and the Age Discrimination in Employment Act (ADEA).

Because of the pandemic, employers have much greater leeway to implement measures to protect both employees and the community’s public health.

The EEOC advised that it will not stand in the way of an employer’s ability to follow guidance issued by the Centers for Disease Control and Prevention (CDC) or other public health authorities.

The webinar elaborated on recent guidance issued by the EEOC in response to the pandemic: "What You Should Know About the ADA, the Rehabilitation Act, and COVID-19" and "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act."

The EEOC advises that during a pandemic:

An employer MAY:

  • Ask an employee who calls in sick if they are experiencing COVID-19 symptoms (e.g. fever, chills, cough, shortness of breath or sore throat). Employers, of course, must maintain all information about an employee’s illness as a confidential medical record in compliance with the ADA.
  • Measure the body temperature of employees during the COVID-19 pandemic, as long as this medical exam is performed on a nondiscriminatory basis.
  • Measure body temperature of all employees entering a physical workplace.
  • Take an individual employee’s temperature if the employer has a reasonable belief based on objective evidence of potential infection where an employee exhibits COVID-19 symptoms.
  • Ask employees before entering the workplace whether the employee has been in contact with anyone diagnosed with or exhibiting symptoms of COVID-19.
  • Require employees to stay home if they have COVID-19 symptoms.
  • Share information about an employee’s symptoms or positive COVID-19 test results with public health authorities.
  • Require a doctor’s note certifying fitness for duty when returning to work after recovering from COVID-19. The EEOC encourages employers to be flexible because many doctors and other health care professionals may be too busy during the pandemic.
  • Screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. For example, an employer may take an applicant’s temperature after making a conditional offer of employment provided it does so on a nondiscriminatory basis.
  • Delay the start date of an applicant who has COVID-19 or displays COVID-19 symptoms.
  • Withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or displays COVID-19 symptoms.

An employer MAY NOT:

  • Require workers aged 65 and older to telework because of the increased mortality rate associated with COVID-19 for older workers.
  • Ask an employee whether the employee is residing with a family member who is diagnosed with or exhibiting symptoms of COVID-19.

Employers must be nimble and continue to follow the evolving advice of the CDC. Employers also should be mindful that this EEOC guidance does not have the force of law and that state and local laws may be more restrictive.  The interplay of these laws can be complicated, particularly when applied to real world situations. Fox Rothschild LLP stands ready to assist with providing solutions to these human resource predicaments.