EEOC updates COVID-19 guidance: What you need to know

Saying it is the “capstone” of its resources on the subject, the EEOC has issued another update to its COVID-19 guidance.

Demonstrating the fluidity of the situation presented by the pandemic, the agency has now updated this guidance about 20 times since its initial release.

Let’s dive in and take a look at some notable points in this most recent — and perhaps final — iteration of the agency’s COVID-19 guidance.

Medical inquiries and exams

Here are some key points about medical exams and inquiries that are part of the most recent update, which was made on May 15:

• If an employee calls in sick, an employer can ask whether they have COVID-19 or symptoms related to it. If the answer is yes, then the employer can follow CDC recommendations regarding isolation.
• The best source of current information on symptoms associated with COVID-19 is the CDC, the guidance advises. Those symptoms may change as new variants emerge and the healthcare community continues to learn more about the disease.
• Taking an employee’s temperature is a medical examination, the updated guidance says, which means that it is permissible only when justified by business necessity. This generally means the employer reasonably believes the employee has a medical condition that will impair their ability to perform essential job functions, or that the employee has a medical condition that poses a direct threat. The lesson here: DON’T routinely take the temperature of employees.
• In determining whether to require an employee with COVID-19 or its symptoms to stay home, the guidance again says to look to – you guessed it – the CDC to decide whether to tell employees to stay home, and for how long.
• Employers can ask all employees who physically enter the workplace if they have been diagnosed with or tested for COVID-19, the updated guidance says. But employers cross a legal line, it adds, if they ask whether employees who come in to work if they have family members with the disease or its symptoms.
• If employees choose not to cooperate (e.g., “I’m not going to tell you whether I have COVID-19”), the guidance gives employers the green light to “take whatever action [they deem] appropriate.”
• Employers can ask employees returning from travel questions about where they have been. These are not disability-related questions, the guidance explains.

Reasonable accommodation

As to disability-related reasonable accommodation, the guidance offers this new information:

• It’s probably a good idea to discuss an accommodation that may be needed upon physical return to the workplace while an employee is teleworking due to COVID-19 and before the return to work.
• If there is an urgency related to the provision of accommodation, employers can provide a temporary accommodation that is implemented after a truncated interactive process between employer and employee.
• Employers can invite employees to ask for reasonable accommodations they might need in advance of a return to the workplace.
• Employers can consider circumstances related specifically to the pandemic (like dealing with delivery delays and trying to hire temporary workers) when determining whether a requested accommodation poses significant difficulty.
• Employers cannot stop providing pandemic-related job accommodations just because the COVID-19 public health emergency ended on May 11.
• Possible job accommodations for Long COVID include a quiet workspace, uninterrupted work time and alternative lighting arrangements.

COVID-19 guidance: Other noteworthy points

Here are some other noteworthy nuggets from the guidance:

• Employers can store medical information relating specifically to COVID-19 in existing medical files.
• Employers can screen job applicants for symptoms of COVID-19 after they make a conditional job offer.
• Employers should take steps to address possible harassment of employees related to the pandemic, such as harassment of an employee for disability-related need to wear a mask at work.

To see the full updated EEOC COVID-19 guidance, click here.