On April 23, 2020 the
Equal Employment Opportunity Commission (EEOC) issued new guidance concerning the impact of the COVID-19 epidemic upon employment practices and discrimination claims. The new guidance addresses whether Employers may permissibly conduct COVID-19 related medical examinations, temperature-taking,
and disability accommodations.
The newly issued guidance can be found here:
Here are the
"
TKCK TOP TEN TAKEAWAYS
"
from the new EEOC Guidance
1.
Because COVID-19 has now been declared to be a pandemic, ADA-covered Employers
may
ask Employees if they are experiencing symptoms of the pandemic. Per the CDC website as of 4/28/2020,
(
link here
), th
ese symptoms include fever, cough, chills, shortness of breath, sore throat, fever, chills, muscle pain, headache, or a new loss of taste or smell. However, you should monitor this guidance because new symptoms are being researched and studied.
2.
Employers may now measure body temperature because state and local authorities have recognized community spread of COVID-19. However, note that a temperature-taking is a medical examination. Safeguard confidential medical records.
3. A
s before, Employers should let other Employees know if a coworker has been exposed to COVID-19 but should
not
share the identity of those infected. Limit information to statements such as “
a colleague in the office
” or “
a fellow worker
” rather than revealing specific identities, even where it may be able for other Employees to figure out who the infected individual might be.
4.
The ADA and the Rehabilitation Act both still apply to “
critical infrastructure workers
” and “
essential critical workers
.” Membership in these categories does not relieve Employers of ordinary ADA and Rehabilitation Act obligations.
5.
“PPE” modifications may be required by both the ADA and Title VII for disability-related or religious-related reasons.
6.
An Employer may send an Employee home if that worker is experiencing symptoms and may require a return-to-duty certification. Employers may also administer COVID-19 testing if it is “job related and consistent with business necessity.” Since Employees coming to a workplace implicates fellow Employee safety, an individual with the virus may (and most likely will) constitute a “direct threat” to coworkers under the ADA.
7. Employers should
not
withdraw job offers, terminate Employees, or take other “adverse action” against Employees because they are in vulnerabl
e classes. This was true before the EEOC guidance, but Employers should not terminate workers over a certain age, or because of gender or national origin.
8. If a job can only be performed in the workplace and an individual has a dis
ability that places that person at higher risk from COVID-19 such as asthma, the ADA requires that reasonable accommodations may need to be explored
including accommodations that might lessen the chance of exposure
. Avoid knee-jerk reactions here. The ADA still exists!
9. Employers should be vigilant against pandemic-related harassment and discrimination due to national origin. For example, harassment of Employees of Asian origin may create a basis for Employer liability. Also, a policy subjecting only Asian persons to COVID-19 testing may be discriminatory (though a policy of testing those who have traveled to hig
h-risk areas like China, Italy and Iran may not be, because that
is based on recent travel and not race or national origin
).
10. Contact the employment law attorneys at TKCK to discuss this and other
COVID-19 related employment issues as they arise. We can advise you on discrimination claims, emergency FMLA requirements, and eventually, return to work measures.
