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EEOC’S NEW GUIDANCE EXAMINES WORKPLACE CONCERNS FOR REOPENING BUSINESSES, INCLUDING MEDICAL TESTING


The frequency of federal, state and local developments resulting from the COVID 19 pandemic is unprecedented. In the face of a crumbling economy and the displacement of millions of workers, employers have never had a greater need for reliable guidance from government agencies that will oversee the reopening of businesses and the reintegration of employees into new work settings. In March and April, millions of workers were furloughed in a matter of days and weeks as stay-at-home orders were promulgated. At the time employers were given few choices and little time to implement measures to protect their employees, business interests, and the health of their communities.

1. Upcoming Decisions

Employers now face the next generation of decisions that will present equally important challenges as they seek to return workers to the “new” workplaces that will be forever changed by the pandemic. California employers can anticipate a more gradual reintegration process that will feature work environments that may be modified to include physical and social distancing standards, physical proximity alarms, new safety and public health rules, a variety of new fears and concerns, a new breed of whistleblower complaints, and clear signs of a new era of litigation. Apart from the public health information and evolving news issued by the Centers for Disease Control and Prevention (“CDC”), employers must remain vigilant for a constant flow of new government regulations and guidance.

On April 23, 2020, the federal Equal Employment Opportunity Commission (“EEOC”) issued guidance regarding its positions relating to the pandemic. Even though the EEOC’s positions are not binding and may differ in some respects from those of the California Department of Fair Employment and Housing (“DFEH”) under California law, they are instructive.

2. The EEOC’s Role

The EEOC plays a central role in issuing and enforcing the federal workplace anti-discrimination laws. These include the Americans With Disabilities Act (“ADA”) (which prohibits disability discrimination and requires reasonable accommodation), Title VII of the Civil Rights Act of 1964 (which prohibits discrimination based on race, color, national origin, religion and sex, including pregnancy), the Age Discrimination in Employment Act (“ADEA”) (which prohibits discrimination against individuals age 40 or older), and the Genetic Information Nondiscrimination Act (“GINA”).

The EEOC has assembled materials related to COVID-19 at www.eeoc.gov/coronavirus. In 2009, it provided guidance in a publication entitled “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act.” It was written during the prior H1N1 outbreak and was updated as of March 19, 2020, to address COVID 19 issues.

3. Questions Addressed By The New EEOC Guidance

The April 23, 2020 guidance addresses the following seven categories of questions and answers, including medical examinations and inquiries relating to COVID 19: (a) disability-related inquiries and medical exams; (b) confidentiality of medical information; (c) hiring and onboarding; (d) reasonable accommodations; (e) pandemic-related harassment due to national origin, race, or other protected characteristics; (f) furloughs and layoffs; and (g) return to work. This article examines just three of the seven topics.

4. Furloughs And Layoffs

The EEOC’s discussion of furloughs and layoffs is very brief. It includes a reminder that special rules apply when an employer offers employees severance packages in exchange for a general release of all discrimination claims. It refers readers to the EEOC’s technical assistance document on severance agreements.

5. Return-to-Work Issues

The EEOC addressed what is now at the center of discussion across the country - bringing America back to work and reintegrating employees into the workplace. It must be emphasized that the issues raised by reintegration are far broader than those examined by the EEOC under the ADA and Title VII. The subject is addressed in numerous substantive law chapters in the new publication, the Employer’s Guide To COVID-19 And Emerging Workplace Issues, by Richard J. Simmons, Brian Murphy, Adam Rosenthal, and contributing authors at Sheppard Mullin.

The return-to-work section of the EEOC guidance poses and answers two important questions relating to screening employees who return to work and the use of personal protective equipment.

a. Screening Returning Employees

The first asks what steps employers can take to screen employees for COVID-19 when entering the workplace after government stay-at-home orders and other restrictions are lifted. The response provides helpful guidance. It reiterates that the ADA permits employers to make disability-related inquiries and conduct medical exams when job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. The guidance explains that a direct threat must be determined based on the best available objective medical evidence, such as guidance from the CDC or other public health authorities. Therefore, the ADA will not prevent screening that is consistent with advice from the CDC and public health authorities for that type of workplace at that time. Examples of permissible screening include taking temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. (The CDC recently posted information on return by certain types of critical workers.) The guidance emphasizes that employers must not unlawfully discriminate against employees based protected characteristics in making decisions related to screening and exclusion.

b. Personal Protective Equipment

The second question posed in the EEOC guidance addresses employer requirements that returning workers wear personal protective gear and engage in infection control practices. It asks whether employers must grant requests by employees who seek accommodations due to a need for modified protective gear. The guidance states that employers may require employees to wear protective gear, such as masks and gloves, and observe infection control practices, such as regular hand washing and social distancing protocols.

Yet, it cautions employers to evaluate their obligations carefully if an employee with a disability needs a related reasonable accommodation under the ADA, e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs, or a religious accommodation under Title VII (such as modified equipment due to religious garb). In such cases, the employer should discuss the request and provide the modification or an alternative if it is feasible and would not create an undue hardship on the operation of the employer’s business.

6. Disability-Related Inquiries And Medical Exams

The guidance poses several questions connected with disability-related inquiries and medical exams that can arise on a day-to-day basis in workplaces. The answers are briefly summarized below:

a. The first question asks how much information an employer may request from an employee who calls in sick, in order to protect the rest of its work force. During the pandemic, employers may ask such employees if they are experiencing symptoms of the pandemic virus. This includes symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about an employee’s illness as a confidential medical record in compliance with the ADA.

b. The second question inquires whether an employer may only ask employees about COVID 19 symptoms the EEOC has identified. 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 questions may guide employers when choosing questions to ask to determine whether employees would pose a direct threat to health in the workplace.

c. The third answer states that measuring an employee’s body temperature is a medical examination. Yet, because the CDC and others have acknowledged community spread of COVID 19 and issued precautions, employers may measure employees’ body temperature, provided they understand that some people with COVID 19 do not have a fever.

d. The fourth question asks whether employers may require employees to stay home if they have symptoms of COVID 19. The guidance provides an unambiguous, “Yes.” The CDC states that employees who become ill with symptoms of COVID 19 should leave the workplace. The ADA does not interfere with the ability of an employer to following this advice.

e. The guidance also allows employers to require a doctor’s note certifying fitness for duty when an employee returns to work. It states that such inquiries are permitted either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. The EEOC observed that practical problems often exist because doctors and other healthcare professionals may be too busy to provide fitness reliance duty documentation. Thus, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an email to certify that an individual does not have the virus.

f. The sixth and final question asks whether an employer may administer a COVID 19 test before permitting employees to enter the workplace. The answer is less lucid than some might prefer. It states that the ADA requires that any medical tests of employees be “job related and consistent with business necessity.” Under the current circumstances, employers may take steps to determine if employees entering the workplace have COVID 19 because an individual with the virus would pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID 19 testing to employees before they enter the workplace to determine if they have the virus. (It does not address testing for the antibody.) The guidance adds a cautionary note, stating that employers should ensure that the tests are accurate and reliable. In addition, it advises employers to still require that employees observe infection control practices, such as social distancing, regular hand washing, and other measures, in the workplace to prevent transmission of COVID 19.

7. Conclusion

Employers and practitioners will be inundated with information from federal and state agencies over the days, weeks and months to come. It is imperative that practitioners continue to track developments and identify reliable information sources. Castle Publications is pleased to announce that the new electronic publication, the Employer’s Guide To COVID-19 And Emerging Workplace Issues, is now available. It contains 15 substantive chapters that examine federal, California and New York laws. It includes chapters on CDC guidance, wage and hour rules, the state and federal WARN rules, employment discrimination, leaves of absence, unemployment, workplace safety, and other topics.

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