Throughout the pandemic, the EEOC has maintained a list of frequently asked questions for employers regarding Coronavirus-related issues. The FAQs are informative, and I suggest that employers take a look at them, which they can do by clicking here.
Last week the EEOC updated some of the FAQs, and I have highlighted a few of those updates below:
Employers Can Require Employees to Take a COVID-19 Test
Employers can require any employee to take a COVID-19 test before entering the workplace. The Americans with Disabilities Act (ADA) requires any mandatory medical test to be “job-related and consistent with business necessity” and in the EEOC’s opinion, COVID-19 tests fall into this category because the virus poses a direct threat to the health of others. If an employee refuses to get tested he or she can be barred from entering the workplace. Employers cannot require teleworking employees to take a COVID test absent special circumstances.
Employers can also ask employees entering the workplace whether they are suffering from symptoms consistent with COVID. They can perform temperature checks too. While employers can single out an employee for testing or questioning, there should be a good reason for doing so (i.e. the employee looks sick, has a family member with COVID, etc.). With that said, employers should not specifically ask an employee whether a family member has COVID, as that would be a violation of the Genetic Information Nondiscrimination Act. They can get around this though by asking whether an employee has been in contact with anyone who has COVID or symptoms consistent with the disease.
Employers Must Keep COVID-19 Information Confidential
The ADA requires employers to keep all medical information about employees confidential and in a separate file, even if that information is not about a disability. If an employee has COVID symptoms, that information must be kept confidential. With that said, this information can be reported to the appropriate people in the company so that they can take measures to keep the workplace safe.
Also, if an employee knows that a co-worker is experiencing COVID symptoms, that employee can report this information to a supervisor.
Employers Can Ask Employees to Identify Accommodations They Need Before Entering the Workplace
Employers can, and probably should ask employees for reasonable accommodations they need before coming back to work. Remember, a reasonable accommodation does not need to be the best accommodation or the accommodation the employee wants—it only needs to allow the employee to be able to perform his or her job.
Also, telework does not have to be granted as a reasonable accommodation. If the employee needs to come into the workplace, and safety precautions can be taken to allow the employee to perform his or her job in the workplace, the employer can require the employee to come in.
Don’t Lay Off or Furlough an Employee Just Because He or She Contracts COVID
Doing this is a violation of the ADA. It also is a violation of the Emergency Paid Sick Leave Act (EPSLA), which requires employers to provide employees who contract COVID with ten days of paid sick leave.