As employers direct their remote or furloughed employees back to the workplace, the EEOC has issued new guidance to help them accommodate the individual needs of some workers – and avoid COVID-19 lawsuits.
On Sept. 8, 2020, the EEOC updated its online COVID-19 guidance with specific information related to handling confidentiality requirements, medical inquiries, telework accommodations and more.
Once an employer resumes normal business operations, post-pandemic telework isn’t automatic, says the EEOC. Whether remote work is a reasonable accommodation depends on the specific facts of each case.
When an employee at higher risk for COVID-19 asks for a remote accommodation, explore all options with the employee: Is remote work necessary or would taking certain safety protocols in the workplace address their concerns?
The ADA never requires an employer to eliminate essential job functions of a job. In other words, if an employee worked from home during the pandemic, that time could be considered a “trial period.” That should factor into whether the employee can perform their essential job functions now.
Employees age 65+
In its June guidance, the EEOC said employers can’t involuntarily exclude an employee from returning to the workplace because they’re 65 or older, even if they’re doing it to protect the employee.
The EEOC’s new guidelines allow employers to provide flexibility to older workers who are at higher risk of contracting COVID-19. This is in line with the Age Discrimination in Employment Act.
In earlier guidance, the EEOC said employers could require employees to submit to COVID-19 testing before permitting them to enter the workplace. Now, the EEOC is giving firms permission to “periodically” test someone to determine if their presence poses a threat to others.
The new guidance permits a firm to ask employees entering the workplace if they have COVID-19 symptoms or have been tested for the virus, and bar those who refuse to answer.
Employers may also specifically ask “one employee as opposed to asking all employees” COVID-19-related questions, as long as they have a “reasonable belief” the employee might have the virus. However, firms may not ask an employee if they have family members with COVID-19. Such inquiries are prohibited under the Genetic Information Nondiscrimination ACT (GINA).
Confidential medical info
The ADA requires all medical information about any employee (temperature checks, medical questionnaires, etc.) be stored separately from their personnel file, says the new guidance.
If a manager discovers a worker has COVID-19, they must report it. They must also interview the employee, determine people with whom the employee has had contact and notify them of their potential exposure.
The EEOC reminds firms a worker’s COVID-19 diagnosis is confidential and employers must take measures to limit the number of people who know the identity of the employee.