EEOC Updates COVID-19 Guidance for Employers

Earlier today, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance for employers facing the ever-increasing challenges arising from the coronavirus disease 2019 (COVID-19) crisis. The EEOC’s guidance on COVID-19 is provided in the context of employer compliance with the Americans with Disabilities Act (ADA) and the Rehabilitation Act, which generally limit an employer’s ability to require employee medical examinations and to inquire into an employee’s medical condition. The privacy interests protected by these employment statutes can conflict with the community’s interests in limiting the spread of disease during a public health emergency. The agency revised its guidance to reflect current recommendations from the Centers for Disease Control (CDC) and World Health Organization (WHO).

Key takeaways from the EEOC’s updated guidance include:

• During a pandemic, employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these symptoms include fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness confidential as it would any other employee medical record.
• Employers may take the body temperature of current employees as well as applicants at the post-offer, pre-employment stage. The EEOC notes, however, that some individuals with COVID-19 do not have a fever. We recommend proceeding with caution here, given that the risk of unreliable equipment, improper technique, and other variables that employers not skilled in administering this kind of examination may not properly control for.
• Employers may require employees who become ill with symptoms of COVID-19 to stay home, or if they become ill at work, to go home.
• An employer may require an employee who is returning to work from a COVID-19-related absence to provide a doctor’s note confirming their ability to return to work. The EEOC notes that as a practical matter, doctors and other health care professionals may be too busy during and immediately after the COVID-19 crisis to provide fitness-for-duty certifications, and recommends that employers consider other approaches to confirming an employee’s fitness to work, 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.
• An employer may screen job applicants for COVID-19 symptoms after making a conditional job offer, so long as the screening is required of all post-offer applicants for the same job.
• An employer may delay the start date of a new hire who has been diagnosed with or exhibits the symptoms of COVID-19. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. If the employer needs the new hire to start immediately, the employer may withdraw the job offer because the individual cannot safely enter the workplace.

The EEOC’s revised guidance is specific to current CDC and WHO recommendations. Should the recommendations of these health officials change, whether to become more stringent or ultimately relaxed, we can expect the EEOC’s guidance to change. Employers faced with questions about COVID-19 screening and making employment decisions based on an employee or applicant’s diagnosis or possible exposure should consult with legal counsel.