EEOC COVID-19 Guidance: Return to Work Considerations

May 13, 2020

The Equal Employment Opportunity Commission (EEOC) has released updated guidance regarding compliance with EEO laws and the COVID-19 pandemic. In particular, the guidance provides that although the EEOC will continue to enforce EEO laws, employers may follow the Center for Disease Control (CDC) guidelines and suggestions to mitigate the impact of COVID-19 in the workplace. The guidance also addresses the impact of reopening workplaces on applicants and employees with disabilities.

We offer a summary of the guidance and our practical suggestions for employers.

Disability-Related Inquiries and Medical Exams

The EEOC answered a number of employer questions regarding the kind of information that can be asked of employees who call in sick; whether employees can be required to remain out of work if they are experiencing COVID-19 symptoms; whether and when it is permissible to take employee temperatures; and whether employees can be required to provide medical certification before returning to work. 

The guidance clarifies the following:

  • Employers are permitted to ask employees if they are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath, or sore throat, or other symptoms that the CDC may later identify. 

  • Employers may take an employee’s body temperature as part of a COVID-19-related medical examination.

  • Employers may require employees to stay at home if they have COVID-19 symptoms.

  • Although employers can require that an employee returning to work provide a healthcare provider’s note certifying fitness for duty, healthcare professionals may be too busy during the pandemic to provide such documentation. In these circumstances, employers are urged to permit documentation from local clinics, or an email certification that an individual does not have COVID-19.

  •  Employers may administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus, although as a practical matter, such tests may not be readily available. Furthermore, employers should ensure that such tests are accurate and reliable, in part by reviewing guidance from the U.S. Food and Drug Administration.

Confidentiality of Medical Information

The guidance offers the following with regard to COVID-19 information pertaining to employees:

  • Although employers may store all medical information related to COVID-19 in existing medical files, medical files must be stored separately from the employee’s personnel file to ensure protection of confidential health information.

  • Employers may disclose the name of an employee with COVID-19 to a public health agency.

  • A temporary staffing agency or a contractor that places an employee in an employer's workplace may notify the employer if it learns the employee has COVID-19.

Hiring and Onboarding

The EEOC also answered employer questions regarding the circumstances in which an employer may postpone an applicant’s start date or withdraw a job offer. The guidance clarifies:

  •  Employers may delay the start date of an applicant with COVID-19 or COVID-19 symptoms.

  • Employers may withdraw an offer to an applicant who has COVID-19 or COVID-19 symptoms when the employer needs the applicant to start immediately.

  • Employers may not postpone the start date or withdraw a job offer because the applicant is at higher risk for COVID-19 (for example, if the applicant is over 65 years old or pregnant).

  • After an employer makes a conditional offer to a job applicant, it can screen the applicant for COVID-19 symptoms, as long as it does so for all entering employees in the same type of job. 

Reasonable Accommodations

The EEOC also addressed employer questions regarding reasonable accommodations for employees with pre-existing disabilities that place them at higher risk of contracting COVID-19, and offered the following information:

  • Employers may be required to offer a reasonable accommodation to employees who, due to a preexisting disability, are at higher risk for COVID-19. Such accommodations may include reduced contact with others by using plexiglass, tables, or other barriers to ensure adequate distance been customers or coworkers. Temporary job restructuring of job duties, temporary transfers to a different position, or modifying a work schedule may also permit an individual with a disability to safely perform the essential functions of their job.

  •  Employees with a preexisting mental illness that has been exacerbated by COVID-19 also may be entitled to a reasonable accommodation, absent an undue hardship.

  • Employers may begin engaging in the interactive process with employees who are currently teleworking, so that an accommodation will be in place when the employee returns to the workplace. 

  • Employers may continue to request medical documentation from an employee who requests a disability-related accommodation.

  • Employers need not provide an accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” For example, when an employee is teleworking, there may be some accommodations, such as special equipment, that would be too difficult or costly to ship to an employee’s home. These considerations do not mean that an employer can reject such requests outright; an employer must weigh the cost of an accommodation, the employer’s financial budget, and other constraints created by this pandemic. 

  • Employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC are nevertheless entitled to the protections afforded by the ADA and Rehabilitation Act. 

Return to Work

The EEOC also addressed employer concerns regarding employees returning to the workplace and clarified:

  • Employers can require that employees returning to work wear personal protective gear and engage in infection control practices. An employee with a disability, such as an allergy to latex gloves, may be entitled to a reasonable accommodation.

  • If an employer is concerned that an employee returning to work is at “higher risk for severe illness” if they contract COVID-19, but the employee has not requested an accommodation, an employer may not exclude the employee from the workplace or take adverse action against them unless their disability poses a “direct threat” to their health that cannot be eliminated or reduced by reasonable accommodation. The direct threat requirement is a high standard that requires the employer show that the individual’s disability poses a “significant risk of substantial harm” to their own health through an extensive individualized assessment.

Additional Recommendations

Before allowing employees to return to work, we recommend that employers take the following preemptive measures:

  • Consider designating an individual or team to coordinate the organization’s planning for resuming operations.

  • Conduct a workplace risk assessment to determine the likelihood that employees will be exposed to COVID-19 in the workplace, and to identify where and how such exposures might occur.

  • Start planning for accommodations now. Ask employees with known disabilities to request accommodations that they believe they may need when the workplace re-opens. Beginning the “interactive process” now will help to ensure a smoother return to work.

  •  Develop protocols and policies to ensure safe working conditions as employees return to work, in accordance with CDC and OSHA guidance. For example:

  • Consider whether your organization will conduct temperature or COVID-19 screenings before employees return to the workplace, or if employees may self-certify that they are not experiencing COVID-19 symptoms.

  • Establish a robust cleaning protocol for all physical workplaces.

  • Determine what protective measures will be implemented to achieve recommended social distances and to mitigate the risk of infection among employees and others (such as social distancing, staggered shifts or flexible work policies, limiting business travel, use of personal protective equipment, etc.). 

  • Create a communications plan to convey important COVID-19 updates to employees. If not already in place, employers should also develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19. 

  • Develop a plan for how to proceed if an employee is suspected or confirmed to have a COVID-19 infection. Employees who appear to have symptoms upon arrival at work or who become sick during the day should immediately be separated from other employees and customers and sent home. If the sick employee has been in the workplace less than seven days, any areas used by the employee for prolonged periods should be closed off for at least 24 hours before being cleaned and disinfected.

  • Employers with fewer than 500 employees should also implement emergency paid sick leave/extended family medical leave policies to ensure their compliance with the Families First Coronavirus Response Act.

  • All policies should be applied uniformly to employees to avoid claims of disparate treatment unless a legitimate job-related reason justifies a departure from the norm.

  • Organizations should also ensure that supervisors, managers, and other individuals in positions of authority understand the interactive process and their responsibilities in responding to requests for reasonable accommodations.

Stay tuned for future Kurker Paget LLC updates on these developing issues.