2020
- Holidays...To Pay or Not to Pay, What is Required
- EEOC Update on COVID-19
- Protection of Employee Health Information
- Civil Rights Win for LGBTQ Employees
- OSHA Recordkeeping Requirements During the COVID-19 Pandemic
- The Line Between At-Will Termination and Wrongful Termination
- Regulating Firearms in the Workplace
- Social Media Use in Hiring
2019
2018
- What Not to Wear
- Vicarious Liability for Unlawful Harrassment
- Employee Surveillance & Union Formation
- A Lesson in Retaliation
- Employers May Sometimes Judge a Book By Its Cover
- Mind Your P’s and Q’s . . . and BFOQs
- Severance Agreements
- U.S. Department of Labor "Paid" Program
- Revisiting Records Retention
- Calculating the Regular Rate
- Independent Contractor or Employee?
2017
- Sexual Orientation Discrimination
- DRI Membership: It’s Personal
- Is Extended Leave a Reasonable Accommodation?
- Parental Leave
- Pay Disparity
- Religious accomodation in the workplace
- Equal pay and prior salary information
- I quit! How to avoid constructive discharge
- You Can't Shred Email
- Navigating Unemployment Claims
- Considering Criminal History in Pre-Employment Decisions
- Defamation Claims from Former Employees
- Mixed Motive Causation
2016
- Requesting Accomodation: Kowitz v. Trinity Health
- Antitrust Law in Human Resources
- An Evolving Standard: Joint-Employment
- What Does At-Will Employment Mean for Employers?
- Let's Talk About Wages
- THE FLSA: CHANGES ARE COMING
- Follow Up: Obesity and the ADA
- The Importance of Social Media Policies
- Is Obesity a Qualifying Disability under the ADA?
- Retaliation on the Rise: The EEOC Responds
- What Motivates You?
2015
- "But I thought ...
- Who’s expecting? And what is he expecting?
- Are You Still Doing Annual Performance Reviews?
- Who is Your Employee?
- The unpaid intern trap Part II
- “We’ve been the victim of a cyber-attack”
- So, a Hasidic Jew, a nun in a habit and a woman wearing a headscarf walk into your office?
- The unpaid intern trap
- Pregnancy in the workplace
- Let's talk about honesty.
- "Did You Know" Series - Part I
- Conducting an Internal Investigation
- What HR can look forward to in 2015!
2014
- The chokehold of workplace technology
- Does your company have trade secrets?
- North Dakota Construction Law Compendium for 2014
- Does the North Dakota baby boom affect you?
- Ban the Box? Why?
- The end of the world as we know it
- Everybody has an opinion
- Changes, Changes, Changes!
- Nick Grant presents at North Dakota Safety Council's 41st Annual Safety and Health Conference
- Email impairment: A potentially harmful condition
- Are Employers Required to Give Stressed-Out Employees Time Off?
2013
- Can you obtain a credit report when investigating employee wrongdoing?
- Can’t we just sidestep the ACA?
- Should Your Employees Telecommute? Part III
- Should Your Employees Telecommute? Part II
- Should Your Employees Telecommute?
- Proper Investigation of Employee Misconduct
- Battles in the Wellness War
- Rules are rules! Aren’t they?
- What's going on in Bismarck
- A glimpse ahead
2012
- Obesity as a disability under the ADA – reweighing the issue
- What’s next for your business under the Affordable Care Act?
- Criminal Background Checks
- Becoming a lawyer is a process, not an event [Section 5 of 5]
- Congress Says Yes To North Slope Energy Jobs Bill
- Test Your Knowledge of Social Media Policies and Employee Discipline
- Becoming a lawyer is a process, not an event [Section 4 of 5]
- What Every Employer Needs to Know About the NLRA
- Will the 2012 Elections Make A Difference
2011
- Where There's Smoke...
- Dress Code Etiquette: Is Casual Friday Becoming Freaky Friday
- The Next Disaster May Be Yours
- Hostile Work Environment Claims
- North Dakota Employment Law Links
- There's An App For That
- Am I a “Business Associate”? Why Should I Care?
- Do You Recognize a Cat's Paw When You See One?
- Cell Phones Can Cost a Lot, Part II
- Becoming a lawyer is a process, not an event [Section 3 of 5]
- Cell Phones Can Cost a Lot, Part I
- The Economy - What HR Professionals Need To Know
- Becoming a lawyer is a process, not an event [Section 2 of 5]
- Three New Challenges For HR Professionals
2010
Oct 05, 2020
On September 8, 2020, the Equal Employment Opportunity Commission (EEOC) updated its What You Should Know About Covid-19 and the ADA, the Rehabilitation Act and other EEO Laws resource. The update provides insight into employers’ authority to require testing or ask questions about COVID-19 symptoms.
The new EEOC guidelines have confirmed that employers can ask employees if they have been diagnosed with or tested for COVID-19, as well as if they have symptoms. However, there are limits. Employers may only ask employees that are physically entering the workplace. Employers may not ask such questions to teleworking employees unless that employee is requesting emergency paid sick leave under the Families First Coronavirus Response Act. Additionally, employers are permitted to ask employees if they have been exposed to or had contact with anyone who has symptoms or who tested positive for COVID-19. However, employers may not specifically ask employees if a family member has COVID-19 or symptoms, as that would violate the Genetic Information Nondiscrimination Act’s prohibition on medical inquiries about family members.
The EEOC also confirmed that employers may conduct COVID-19 testing before permitting an employee’s initial or continued presence in the workplace. This is allowed under the Americans with Disabilities Act’s requirement that testing be both job-related and consistent with business necessity, as the testing determines whether there is a direct threat to the health of others in the workplace. Moreover, if an employee refuses to be tested or answer questions about testing, symptoms or infection with COVID-19, employers may keep that employee from entering the workplace.
Finally, the CDC has made clear that individuals over the age of 65 are at higher risk to develop of severe case of COVID-19 if they contract the virus. The CDC encourages employers to offer flexibility to this classification of workers. The question is, is accommodation required? The Age Discrimination in Employment Act prohibits discrimination on the basis of age for those employees age 40 and older. The ADEA does not include a right to reasonable accommodation based on age. However, this does not prohibit an employer from being flexible. One caution, an employer should not involuntarily exclude an individual over the age of 40 from the workplace based upon their age alone, even if the intention is to protect that employee’s health.
Labor and employment law in the pandemic is constantly evolving. It is important to stay up to date on all new laws and regulations that are being enforced in the COVID-19 era. By staying current on all things COVID-19, it can help you and your workplace get through these difficult and uncertain times.
Our Interest in Serving You:
Our law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email us at mcerkoney@ndlaw.com or amann@ndlaw.com. We promise to take your comments and ideas to heart.
Disclaimers
(Otherwise known as “the fine print”)
We make a serious effort to be accurate in these writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.
Reprinted with permission from an article submitted for publication in the October, 2020 Southwest Area Human Resource Association newsletter.
EEOC Update on COVID-19
By: Allison Mann and Marissa CerkoneyOn September 8, 2020, the Equal Employment Opportunity Commission (EEOC) updated its What You Should Know About Covid-19 and the ADA, the Rehabilitation Act and other EEO Laws resource. The update provides insight into employers’ authority to require testing or ask questions about COVID-19 symptoms.
The new EEOC guidelines have confirmed that employers can ask employees if they have been diagnosed with or tested for COVID-19, as well as if they have symptoms. However, there are limits. Employers may only ask employees that are physically entering the workplace. Employers may not ask such questions to teleworking employees unless that employee is requesting emergency paid sick leave under the Families First Coronavirus Response Act. Additionally, employers are permitted to ask employees if they have been exposed to or had contact with anyone who has symptoms or who tested positive for COVID-19. However, employers may not specifically ask employees if a family member has COVID-19 or symptoms, as that would violate the Genetic Information Nondiscrimination Act’s prohibition on medical inquiries about family members.
The EEOC also confirmed that employers may conduct COVID-19 testing before permitting an employee’s initial or continued presence in the workplace. This is allowed under the Americans with Disabilities Act’s requirement that testing be both job-related and consistent with business necessity, as the testing determines whether there is a direct threat to the health of others in the workplace. Moreover, if an employee refuses to be tested or answer questions about testing, symptoms or infection with COVID-19, employers may keep that employee from entering the workplace.
Finally, the CDC has made clear that individuals over the age of 65 are at higher risk to develop of severe case of COVID-19 if they contract the virus. The CDC encourages employers to offer flexibility to this classification of workers. The question is, is accommodation required? The Age Discrimination in Employment Act prohibits discrimination on the basis of age for those employees age 40 and older. The ADEA does not include a right to reasonable accommodation based on age. However, this does not prohibit an employer from being flexible. One caution, an employer should not involuntarily exclude an individual over the age of 40 from the workplace based upon their age alone, even if the intention is to protect that employee’s health.
Labor and employment law in the pandemic is constantly evolving. It is important to stay up to date on all new laws and regulations that are being enforced in the COVID-19 era. By staying current on all things COVID-19, it can help you and your workplace get through these difficult and uncertain times.
Our Interest in Serving You:
Our law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email us at mcerkoney@ndlaw.com or amann@ndlaw.com. We promise to take your comments and ideas to heart.
Disclaimers
(Otherwise known as “the fine print”)
We make a serious effort to be accurate in these writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.
Reprinted with permission from an article submitted for publication in the October, 2020 Southwest Area Human Resource Association newsletter.