Employment Law

The EEOC recently updated its guidance on COVID-19 and discrimination laws. The updated guidance is at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

In the EEOC’s view, during the COVID-19 pandemic:

• The Americans with Disabilities Act (ADA) does not prohibit employers from:
  • requiring employees to undergo COVID-19 testing (on a non-discriminatory basis) as a condition of entering the workplace;
  • periodically testing employees in the workplace (on a non-discriminatory basis) to determine if their presence poses a direct threat to others (Employers who follow CDC guidelines for COVID-19 testing should satisfy the ADA’s business necessity requirements);
  • asking employees if they have COVID-19 or symptoms of COVD-19;
  • asking employees if they have been tested for COVID-19 (Employers may limit such inquiries to one or specific employees — as opposed to asking all employees — as long as they have a reasonable belief, based on objective evidence, that the employee(s) being asked might have COVID-19);
    • However, employers may NOT ask employees whether their family members have COVID-19 or symptoms thereof, because of the Genetic Information Non-Discrimination Act (GINA)).  GINA would not prohibit employers from asking if employees have had contact with anyone who has COVID-19 or symptoms thereof.
  • asking an employee who becomes sick at work or calls in sick about symptoms of COVID-19; or
  • asking if an employee travelled to certain locations identified by CDC or local public health officials as places upon return from which a person should self-quarantine.
• As for reasonable accommodations once employees return to the workplace, the EEOC recognizes that an employer’s willingness to permit telework during a pandemic does not mean that the employer permanently changed the job’s essential functions, that telework is always a reasonable accommodation, or that telework does not create undue hardship. These will be fact-specific determinations when a need for accommodation arises, understanding that, if an employee requests telework as a reasonable accommodation, one factor to consider would be whether, during the pandemic, the employee was able to safely and effectively perform all essential job functions through telework.
• Q&A 5 is worth reproducing in its entirety, as the situation is not uncommon:

B.5. Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do? (9/8/20; adapted from 3/27/20 Webinar Question 5)

The ADA requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take  actions consistent with guidance from the CDC and other public health authorities.

The question is really what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.

The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.

The employment attorneys of Wooden McLaughlin LLP can assist with these and all of your employment law needs. Call us at 888-639-6151 or visit our offices in Indianapolis, Evansville, or Bloomington to schedule a consultation.

(This post summarizes complex legal issues and is not legal advice. Consider consulting with a lawyer about specific situations.)