Skip to content

Menu

ChannelsPublishersSubscribe
LexBlog, Inc. logo
LexBlog, Inc. logo
ProductsSub-MenuBlogsPortalsTwentySyndicationMicrositesResource Center
Join
Search
Close
Join the Movement. Blog 4 Good

EEOC Releases Updated COVID-19 Guidance (Updated as of April 23, 2020)

By Salvatore G. Gangemi & Patricia E. Reilly on April 27, 2020
EmailTweetLikeLinkedIn

On Friday, April 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance on COVID-19 issues and equal employment opportunity (EEO) laws.  The easy to read Q&A format is necessary reading for essential employers whose physical workspaces remain open, and for employers contemplating re-opening plans or personnel changes.  The EEOC’s guidance clarifies that EEO laws, such as the Americans with Disabilities Act (ADA), continue to apply during the pandemic, while recognizing that these laws should not interfere with applicable safety guidelines issued by the CDC and other agencies.  Recent guidance addresses the following issues:

  • Employee symptom questioning: Although the ADA generally restricts medical exams and disability-related inquiries, employers may ask employees if they are suffering from symptoms associated with COVID-19. Employers may “rely on the CDC, other public health authorities, and reputable medical sources” to determine what symptoms are relevant.  As stated in previous guidance, employers are permitted to take and track employees’ body temperatures during the pandemic.
  • Confidentiality of medical information: The ADA has always required that an employee’s medical information be kept separately from an employee’s personnel file to ensure limited access; COVID-19-related information is no exception. Generally, employers must keep the identity of COVID-19 positive employees confidential.  But employers may disclose the identity of a COVID-19 positive employee to a public health agency (or if the employer is a staffing agency, to the employee’s assigned workplace).
  • Hiring and onboarding: Employers may screen applicants for COVID-19 symptoms after making a conditional offer of employment, but must do so for all applicants. Employers may not make an adverse employment decision based on COVID-19 risk factors, such as advanced age or pregnancy – but may make reasonable accommodations (i.e., teleworking) for them. If an employer requires that an individual start work immediately but the employee is unable to do so because of COVID-19, the employer may rescind the job offer.
  • Reasonable accommodations: Due to COVID-19, employees may require additional or different accommodations, just as employers may have different undue hardships. The principles of the “interactive process” still apply.  Where an employee at high risk for COVID-19 must be present in the workplace to perform their job, consider “temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment” to promote collective health and welfare.
  • Pandemic-Related Harassment: COVID-19 is not an excuse to harass or discriminate against anyone because of any protected characteristic, including race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. Employers should remind employees of equal opportunity law requirements, and expeditiously investigate any allegations of harassment or discrimination.
  • Layoffs and Releases: COVID-19 does not change the requirement that releases waive employee rights pursuant to federal equal opportunity laws must be signed “knowingly and voluntarily.” Consideration and revocation periods required by the Older Workers Benefit Protection Act remain in effect.
  • Returning to work: Use common sense. Employees may be screened for COVID-19, but cannot be treated differently based on protected characteristics.  Work with employees to provide reasonable accommodations to requests related to protective gear or work duties, so long as it is not an undue hardship for the employer.

UPDATE: On April 23, the EEOC updated its rolling COVID-19 guidance to explicitly permit workplace administration of COVID-19 tests to returning employees.  Tests are permissible under the Americans with Disabilities Act because “an individual with the virus will pose a direct threat to the health of others.”  The EEOC further advised that “employers should ensure that the tests are accurate and reliable.”

The guidance certainly rings aspirational, at best.  The EEOC provided no instruction on where to obtain COVID-19 tests, or how to independently certify their efficacy, apart from staying current with Food & Drug Administration and Center for Disease Control guidance.  The guidance further acknowledges that “accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.”

To the extent your workplace has access to reliable testing, you may use it, but it is not a cure, and its utility is limited.  Continue to exercise all due precautions to ensure your workplace is as safe as possible.

Prognosticators are expecting a boom in employment litigation as a result of COVID-19 related adverse employment actions.  Applying current federal guidance now is essential to avoid legal liability later.  The Murtha employment team is at the ready to provide specific advice.

Photo of Salvatore G. Gangemi Salvatore G. Gangemi

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of…

Salvatore G. Gangemi is a Partner in the Litigation Department of Murtha Cullina and a member of the Labor and Employment Practice Group. He advises clients with respect to state, federal and local employment laws. In addition, he litigates matters involving misappropriation of trade secrets, restrictive covenants, breach of employment contract, fiduciary duty, and other work-related common law claims. Sal also counsels clients on day-to-day issues involving workplace management and administration, including requests for reasonable accommodation for disabilities, for family and medical leave, and wage and hour issues.  He conducts employment law training on a variety of topics, including sexual harassment prevention and wage/ hour compliance.  He also drafts employment policies and agreements, and assists clients in auditing worker classification practices and policies both in the context of the Fair Labor Standards Act and state laws governing independent contractor determinations.

Read more about Salvatore G. GangemiEmail Salvatore G.'s Linkedin Profile
Show more Show less
Photo of Patricia E. Reilly Patricia E. Reilly

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices…

Patricia E. Reilly, Chair of the Labor and Employment Practice Group, is an experienced litigator who represents clients in a wide range of cases including, employment discrimination and related torts, non-compete and restrictive covenants, wage and hour, breach of contract, unfair trade practices, and business disputes. In addition to maintaining a thriving litigation practice, Tricia counsels clients on a variety of employment-related issues including hiring, firing, and discipline; wage and hour; state and federal FMLA; sexual harassment investigations and prevention; Title IX; pregnancy and disability accommodation; and avoidance of employment discrimination liability.

Tricia is listed as a leading Labor and Employment Lawyer in Chambers USA.  She is listed in Best Lawyers in America®, and in 2017, Best Lawyers in America® recognized her as “Lawyer of the Year”, New Haven, Litigation – Labor and Employment. Tricia is a member of the American Bar Association, the Connecticut Bar Association and the New Haven County Bar Association.  She received her B.A. from Wesleyan University and her J.D. from University of California, Berkeley School of Law.

Read more about Patricia E. ReillyEmail Patricia E.'s Linkedin Profile
Show more Show less
  • Posted in:
    Employment & Labor
  • Blog:
    Employment Law Perspectives
  • Organization:
    Murtha Cullina LLP
  • Article: View Original Source

Stay Connected

Facebook LinkedIn Twitter RSS
Real Lawyers

Company

  • About LexBlog
  • Careers
  • Press
  • Contact LexBlog
  • Privacy Policy
  • Editorial Policy
  • Disclaimer
  • Terms of Service
  • RSS Terms of Service

Products

  • Products
  • Blogs
  • Portals
  • Twenty
  • Syndication
  • Microsites

Support

  • 1-800-913-0988
  • Submit a Request
  • Support Center
  • System Status
  • Resource Center

New to the Network

  • The Capital Commitment
  • Delaware Intellectual Property Litigation
  • Restrictive Covenant Report
  • PFAS and Emerging Contaminants
  • Privacy Law Blog
Copyright © 2021, LexBlog, Inc. All Rights Reserved.
Powered By LexBlog