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Oct 05, 2020

EEOC Update on COVID-19

By: Allison Mann and Marissa Cerkoney

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.

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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.

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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.