The federal agency that deals with employment discrimination, the Equal Employment Opportunity Commission (EEOC), has issued what it calls a “technical assistance” – in essence guidance to help employers deal with various workplace issues in light of CDC guidelines. This is a quick summary of the new standards. You can read the full guidance here.
On the Medical Front
- Although health matters of employees are normally off-limits, employer are now permitted to ask employees who call in sick if they have symptoms associated with COVID as identified by the CDC or other recognized medical authorities.
- Employers may take employee’s temperature at the beginning of a shift.
- A “fitness for duty” doctor’s note can be required for an employee to return to work after exhibiting COVID symptoms. To keep the burdens lower, an email from a health care provider is enough.
Of course, if any medical information is collected by an employer, privacy must still be maintained (including separate medical file, etc.).
Accommodations
- Employers are encouraged to seek creative and low-cost solutions to accommodate their workforce, with special attention to those with pre-existing conditions who may be at higher risk from COVID. This includes physical separation at work, use of barriers where appropriate, along with job restructuring (e.g., split shifts).
- Normally when an employee asks for accommodations in the workplace because of health related disabilities, the employer is required to start a back-and-forth with the employee to determine what options are available. This normal interactive process associated with requests for accommodations can be skipped or shortened if the employer wishes to simply provide temporary accommodations. An interim “end date” should be established, at which point the accommodations can be reevaluated.
- At the same time, with an eye towards reopening, employers are encouraged to start discussions now as to how to handle future accommodations when businesses re-open. That is, employers should consider the makeup of their workforce and not wait for employees to ask for accommodation in the future.
- When considering whether a particular accommodation may be a hardship to the employer, it is OK to consider the loss of income due to the pandemic. At the same time, an accommodation request cannot be rejected merely because it will result in additional costs.
Discrimination Matters
- Employers are encouraged to be proactive to avoid harassment and discrimination. For example, because of an increase in discriminatory behavior against employee of Asian descent, this may include setting guidelines now that behavior based on national origin or race is not be acceptable.
- As employees return to work, either from leave or because of modifications in stay-at-home orders, employers can make disability-related inquiries and even require medical exams, as long as job related and meet a business necessity – that is, necessary to prevent an employee with a medical condition returning to work, if that would pose a direct threat to health and safety of others. The CDC has deemed COVID to be a “direct threat to health and safety,” so such action would be consistent with the ADA as long as any medical screening is consistent with the CDC and public health authorities, for the type of work environment in question.