EEOC Expands COVID-19 Guidance on Testing, Medical Inquiries, Confidentiality, Accommodations, and More

By Fiona W. Ong - Shawe Rosenthal LLP

September 9, 2020

The Equal Employment Opportunity Commission updated its What You Should Know About Covid-19 and the ADA, the Rehabilitation Act and Other EEO Laws resource to add Q&As about employers’ authority to require testing or ask questions about COVID-19 symptoms, confidentiality of COVID-19 diagnoses, and reasonable accommodations, as well as considerations for furloughs/layoffs, treatment of older workers. Most of this guidance was provided in the EEOC’s March 27 webinar and other resources.

COVID-19 Testing. The EEOC reiterated its earlier guidance that employers may conduct COVID-19 testing before initially permitting employees to enter the workplace as well as periodically. Such testing meets the Americans with Disabilities Act’s (ADA) requirement that testing be both job-related and consistent with business necessity – in the context of the pandemic, to determine if the presence of such employees in the workplace poses a direct threat to the health of others. The EEOC notes that the ADA does not interfere with employers’ following the workplace testing recommendations of the Centers for Disease Control and Prevention (CDC), and that compliance with the CDC’s current guidance meets the ADA’s “business necessity standard.”

Currently, the CDC recommends testing of employees who have symptoms or who were in close contact with COVID-19-positive individuals, as well as of asymptomatic workers in certain “special” situations (i.e. where physical distancing is not possible, where medical treatment may be delayed, in critical infrastructure sectors, and where there is congregate housing of workers). Notably, the CDC no longer recommends testing as a factor in the decision to end home isolation (and enable the employee to return to work) for employees with suspected or known infection, instead relying upon a symptom-based strategy.

The CDC does acknowledge that the employer may require a doctor’s note to verify that an employee is healthy and able to return to the workplace, although it cautions that such documentation may not be available in a timely manner during periods of community transmission, when health care providers may be extremely busy.

The EEOC also reiterates its warning to employers about the accuracy of tests, and reminds employers that a negative test does not mean the employee will not become infected later.

Employer Inquiries About Testing, Symptoms and Travel. The EEOC confirms that employers may ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19, as well as if they have symptoms. This is to ensure the health and safety of others in the workplace. The EEOC states that employers generally are not permitted to ask such questions of teleworking employees who are not physically interacting with others. (One exception, of course, would be if an employee is requesting emergency paid sick leave under the Families First Coronavirus Response Act because they have been advised by a health care provider to quarantine or they are symptomatic and are seeking a diagnosis).

Employers may also ask a particular employee (as opposed to all employees generally) questions to determine if they have COVID-19 or require them to undergo screening or testing only where they have a reasonable belief based on objective evidence that the employee might have the disease.

Employers may not ask employees if a family member has COVID-19 or symptoms, as that would violate the Genetic Information Nondiscrimination Act’s prohibition on medical inquiries about family members. Employers are permitted to ask, however, if employees have had contact with anyone who has the disease or symptoms.

If an employee who works onsite calls in sick or reports feeling ill, the employer may ask questions about their symptoms. In addition, an employer may ask an employee why they have been absent from work. And an employer may ask an employee where they have traveled, even if the travel was personal – such question is not a medical inquiry under the ADA.

An employer may bar an employee from the workplace if they refuse to undergo screening or answer questions about testing, symptoms or infection with COVID-19. The EEOC recommends, however, that the employer ask about the reasons for the refusal, as the employer may be able to address the employee’s concerns about providing the information (e.g. privacy, needing accommodations for screening).

Confidentiality. Although the ADA requires confidentiality of medical information, the EEOC confirms that a manager who learns of an employee’s COVID-19 diagnosis or symptoms may report it to appropriate company officials to take actions consistent with CDC guidance. Disclosure of the identity of the employee should be limited to those with a need to know, who should be cautioned to maintain confidentiality.

The employer may interview the employee to ascertain which other employees might have been in close contact (i.e. within 6 feet for at least 15 minutes), and may inform those employees of their potential exposure without naming the employee. The EEOC states that a generic descriptor, such as “someone at this location” or “someone on the fourth floor” has COVID-19 is appropriate notice without violating ADA confidentiality requirements, even while acknowledging that the other employees may be able to figure out the identity of the infected employee.

Employees may inform management of a co-worker’s COVID-19 symptoms. This is not a violation of the ADA’s confidentiality requirement.

If an employee is teleworking because of quarantine due to a COVID-19 diagnosis or symptoms, an employer may inform co-workers that the employee is teleworking without saying why, if the co-workers need to know how to contact the employee. Similarly, if an employee is on leave, the employer may inform other employees of the leave, again without disclosing the reason for the leave.

The EEOC acknowledges that the normal protocols for protecting the confidentiality of employees’ medical information may not be accessible while managers and supervisors are telecommuting. Under such circumstances, they must still safeguard the information to the greatest extent possible until they can properly store it. Information in hard copy must be secured, and electronic information must not be accessible to others. The EEOC suggests using initials or another code to further protect the employee’s name.

Reasonable Accommodations. If an employer requires its employees to telework, an employee who receives workplace accommodations is entitled to reasonable accommodations while telecommuting. However, such accommodations may be the same or different from the workplace accommodations, depending on the particular situation. The EEOC acknowledges that accommodations that were feasible in the workplace may be an undue hardship in a telecommuting situation. In particular, the EEOC notes, “the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.”  The EEOC encourages employers and employees to be creative and flexible, and to consider interim accommodations.

As to the issue of telecommuting as an accommodation, the EEOC states that an employer that required its employees to telework is not automatically required to grant telework as a reasonable accommodation when the workplace reopens. Telework is not required if there is no disability-related need for telework, or if there is an effective alternative. Moreover, if the pandemic-related telework required the employer to excuse the performance of an essential job function, the employer need not continue excusing such performance, as that would not be a reasonable accommodation. A fact-specific inquiry as to what is reasonable is required.

If an employee had requested telework as a reasonable accommodation prior to the pandemic but was denied because of concerns that the employee could not perform their essential job functions remotely, their telework experience during the pandemic might be relevant to a renewed request for a telework accommodation. Essentially, the pandemic-related telework functions as a trial period to see if the employee can satisfactorily perform all their essential job functions while working remotely, and the EEOC states that employers should consider any new accommodations requests for telework “in light of this information.”

Under the ADA, employers are supposed to engage promptly in the interactive process for discussing requests for reasonable accommodations. The EEOC notes, however, that the pandemic may result in excusable delays in discussing requests and providing accommodations. It encourages employers to address requests “as soon as possible” and to consider interim solutions to keep employees working.

And More. On the subject of furloughs and layoffs, the EEOC warns employers that selections may not be based on legally-protected characteristics or in retaliation for exercising rights under federal anti-discrimination laws.

As to older workers, the EEOC had previously stated that the Age Discrimination in Employment Act does not require accommodation, but encouraged employers to be flexible. The EEOC now states that if employers choose to offer flexibilities to other workers, they cannot treat comparable older workers less favorably because of age.