The EEOC recently discussed twenty-two questions in a webinar concerning statutes enforced by the EEOC as they relate to employment issues caused by COVID-19. Much of the information shared has been addressed in previous EEOC guidance, but clients should find the webinar content useful, nonetheless. As a prelude, the EEOC said it was not addressing any wage and hour, OSHA, FMLA, or unemployment questions, and that persons looking for answers to such questions should consult the Department of Labor. The EEOC addressed the following twenty-two questions, and these are the answers (as noted by our firm):
1. What may an employer do before allowing an employee to physically enter the workplace?
An employee may take the temperatures of employees. Additionally, an employer may ask an employee if he has COVID-19, has symptoms and has been tested, as such individuals might pose a direct threat. If a person has the virus or has symptoms, an employer may exclude him or her from the workplace as a direct threat. An employer does not, however, have these concerns for teleworking employees and may not make COVID-19 related inquiries of them.
2. What if an employee refuses to allow his temperature to be taken or refuses to answer COVID-19 related questions?
The employer can bar the individual from physically entering the workplace. It is recommended that employers inform such an employee that the employer is asking the questions out of concern for the safety of the workplace and that the Americans With Disabilities Act (ADA) protects the confidentiality of this medical information.
3. Can an employer ask one particular employee COVID-19 related questions?
Yes. If an employer believes, based on objective evidence, that a particular employee may have the virus (i.e., the employee is exhibiting symptoms) and that other employees do not have the virus, then it can single an employee out.
4. Can an employer ask an employee whether a family member has the virus or symptoms?
It is recommended that an employer ask employees about contact with anyone who has the virus or if the employee has had contact with anyone with symptoms. The Genetic Information Nondiscrimination Act (GINA) generally prohibits medical questions about family members.
5. Is an employee’s COVID-19 related information confidential?
Yes. A supervisor can relay such information to appropriate employer officials, who should be instructed to maintain confidentiality. Employers are encouraged to limit the number of employees to whom such information is disseminated.
6. Can a co-worker who knows another employee has the virus tell a supervisor?
7. Can an employer reveal to other employees that another employee is teleworking?
Yes, because others may wonder where the employee is, but the employer should not say why the employee is teleworking.
8. Can an employer reveal the name of an employee diagnosed with the virus?
No. This is not recommended by the CDC either.
9. Is a teleworking employee bound by the confidentiality requirements for COVID-19 related information?
Yes. An appropriate employer official with confidential information about company employees with the virus or symptoms must maintain the confidentiality of such information. The requirements apply even though the employee is not physically at the workplace. Employees working at home should not leave notepads lying around where others can see and should not store this information on computers that others can access.
10. Can an employer inform a public health authority about an employee with the virus?
Yes. The EEOC does not preempt state and local laws concerning public threats, and persons with the virus or symptoms pose a direct threat to themselves and others.
11. Can an employer exclude or lay off individuals or employees over 65 years old because the CDC has identified them as being in a heightened risk group where they do not have the virus or symptoms?
No. This violates the Age Discrimination in Employment Act (ADEA).
12. Must an employer grant a request to telework for employees over 65 years old because the CDC has identified them as being in a heightened risk group where they do not have the virus or symptoms?
No. If the employer is allowing other similarly situated employees to telework however, it could violate the ADEA if the employer denies such requests for employees age 40 or over.
13. Can an employer lay off a pregnant employee without the virus or symptoms because the CDC has indicated that such individuals should be monitored in light of COVID-19 concerns?
No. This would constitute pregnancy discrimination that would violate Title VII.
14. Is an employer required to allow a pregnant employee who does not have the virus or symptoms to telework because the CDC has indicated that such individuals should be monitored in light of COVID-19 concerns?
No. If, however, an employer is allowing other similarly situated employees who are not pregnant to telework, refusing a pregnant employee’s request to telework could constitute pregnancy discrimination in violation of Title VII.
15. Can an employer refuse to hire or lay off individuals because of their national origin?
No. This would constitute national origin discrimination in violation of Title VII.
16. Is COVID-19 an ADA disability?
It is unclear at this point. Regardless, an employer can bar someone with the virus or symptoms from entering its workplace.
17. Does an employer have to provide reasonable accommodation for an employee who does not have the virus or symptoms but who has a disability that puts him at greater risk of severe illness if he contracts the virus?
Maybe. The CDC has identified some individuals with conditions, such as chronic lung disease and serious heart conditions, who are at higher risk of contracting the virus. An employer may verify that the individual has a disability and whether contracting the virus would place him at higher risk for severe illness. While awaiting such documentation, it is recommended that the employer implement temporary accommodations (such as teleworking).
18. Must an employer provide a reasonable accommodation to an employee without the virus or symptoms because he lives in a household with someone who has a disability and is at a greater risk of severe illness if he contracts the virus?
No. This employee does not have a disability, and the ADA accommodation obligation does not extend to disabilities of family or household members.
19. Must an employer engage in an interactive process with an employee with a disability who is impacted by COVID-19?
Yes. Employers are required to engage in the interactive process in discussing reasonable accommodations. Employers should consider temporary accommodations and to be flexible and creative in dealing with employees affected by the virus.
20. Must an employer provide the same reasonable accommodations to teleworking employees that it provides to such employees at the workplace?
Not necessarily. Employers are again encouraged to discuss such issues with employees and to be flexible and creative with such accommodations. An accommodation to an employee working from home might be much more easily provided at the workplace and could be an undue hardship to provide to a teleworker.
21. Must an employer allow teleworking after the public health emergency is over as an ADA accommodation?
No, especially if the employee is not disabled. This depends on whether the essential functions of the job are being performed, and if an employee can perform the essential functions of the job at either place, the employer can require the employee to come to work. Many employees teleworking are probably not performing the essential functions of the job at this time, and temporary excusal of essential functions during this crisis does not mean that an employer has to excuse them permanently, that relaxed essential functions are reasonable accommodations, or that relaxed essential functions would not be an undue hardship on a permanent basis.
22. Must an employer that rejected a disabled employee’s teleworking request before this crisis allow teleworking after the crisis, since it allowed it during the crisis?
Generally, an employer can refuse the request again. However, if the employee was performing all the essential functions of the job while teleworking, it would be relevant to whether it is a reasonable accommodation, and perhaps, not an undue hardship.
Since legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.