workplace during COVID-19

EEOC Updates COVID-19 Guidance

By Douglas Lipsky

In September, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance on COVID-19 and the workplace. The update provides answers to common questions about returning employees and federal equal employment opportunity laws. If you have concerns about your employment rights during what some are calling the “new normal,” talk to an employment lawyer. 

COVID-19 and EEO Laws at a Glance

The EEOC’s guidance, originally issued in March, covers topics such as employer-mandated COVID-19 testing and coronavirus-related inquiries. The update provides additional guidance to employers on these and other matters by answering questions such as:

Can employers test workers for COVID-19 prior to allowing them to return?

Yes, sort of. The Americans with Disabilities Act (ADA) generally prohibits employers from requiring employees to submit to a medical examination unless such testing is job-related and consistent with business necessity. Because of the direct threat posed to other workers by the coronavirus, testing returning employees will satisfy the business necessity standard as long as the testing adheres to current guidance from the Centers for Disease Control and Prevention (CDC).

Can employers ask returning employees if they have had or been tested for COVID-19?

Yes. Employers may ask all returning employees whether they have COVID-19, related symptoms, or if they’ve been tested for the virus. It is worth noting that such questions can only be asked of employees physically entering the workplace; COVID-19 inquiries of employees who work remotely are not generally permitted. Employers may also exclude employees with COVID-19 or related symptoms from the workplace because they pose a direct threat to the safety of others. 

Can employers ask returning employees if family members have COVID-19 or related symptoms?

Yes. While such inquiries are prohibited under the Genetic Information Nondiscrimination Act (GINA), employers may ask whether employees have had close contact with any individuals,  not just family members, who have been diagnosed with COVID-19 or who have related symptoms.

Can employers request an explanation when an employee is absent from work?

Yes. An employer always has the right to ask an employee why he or she did not report to work because it is not a disability-related inquiry.

What if an employee refuses to be tested or answer questions about COVID-19?

Because of the ongoing threat posed by the coronavirus pandemic, an employee who refuses to be tested for COVID-19 (e.g. temperature screening) or who declines to answer questions about symptoms or other COVID-19 matters can be barred from entering the workplace. 

In addition to providing answers to these questions, the updated EEOC guidance also addresses matters such as the confidentiality of employee medical information and how teleworking will be evaluated as a reasonable disability accommodation under the ADA going forward. 

The fact that many employers permitted workers (with or without disabilities) to telecommute to contain the virus does not mean that a disabled employee is entitled to work remotely as an accommodation once the workplace reopens.

The Takeaway

Given the novel challenges presented by COVID-19, it is likely that the EEOC will provide further updates to their guidance. Meanwhile, the best way for employees and employers in New York to understand their rights during this unprecedented time is to consult with an experienced employment law attorney.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.