Equal Employment Opportunity Commission Provides Guidance on What Actions Employers May Take to Address the Impact of COVID-19

The U.S. Equal Employment Opportunity Commission (EEOC) has published guidance for employers on disability-related concerns in light of COVID-19. The EEOC enforces workplace anti-discrimination laws including the requirements for COVID reasonable accommodations and rules about medical examinations and inquiries under the Americans with Disabilities Act (ADA). In a post What You Should Know About the ADA, the Rehabilitation Act and the Coronavirus, the EEOC has made clear that while the ADA rules continue to apply, they “do not interfere with or prevent employers from following the guidelines and suggestions made by the [Centers for Disease Control and Prevention (CDC)] about steps employers should take regarding the Coronavirus.”

Specifically, the CDC has issued Interim Guidance for Businesses and Employers, which provides various recommendations including that employers “actively encourage” sick employees to stay home, perform routine environmental cleaning, emphasize that employees use respiratory etiquette and hand hygiene, and advise employees before traveling to take certain steps.

Notably, the Interim Guidance provides the following recommendations, which based on the EEOC’s current position would not run afoul of the ADA:

Employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and sent home immediately.
If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the ADA.
Employers should discuss with companies providing them contract or temporary employees the importance of sick employees staying home.
Employers should not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, given the pandemic may prevent health care providers from timely providing such notes.
Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor.

In its posting, the EEOC has also referenced its prior guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, restating the rules around disability-related inquires and medical examinations and providing the answers concerning what actions an employer may take when a pandemic is declared. On March 11, 2020 the World Health Organization (WHO) declared COVID-19 a global pandemic, and the CDC’s website provides guidance that in the US, different parts of the country are seeing different levels of COVID-19 activity. According to the CDC, the US nationally is currently in the initiation phase of the pandemic, but individual states where community spread is occurring are in the acceleration phase of the pandemic. As a pandemic, employers can take the following additional steps:

An employer may send employees home if they display influenza-like symptoms during a pandemic.
Employers may ask employees who report feeling ill at work or who call in sick whether they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. (Employers must maintain all information about the employee’s illness as a confidential medical record)
An employer may ask employees why they have been absent from work if the employer suspects it is for a medical reason.
Employers may ask employees returning from travel during a pandemic about exposure to pandemic influenza during the trip.
Employers may measure employees’ body temperature only if pandemic influenza symptoms become more severe than the seasonal flu or 2009 H1N1 virus, or pandemic influenza becomes widespread in the community as assessed by the CDC or state or local health authorities.
If an influenza pandemic becomes more severe or serious than the seasonal flu or 2009 H1N1 virus, the employer may, relying on the assessment of any local, state or federal health authority, reasonably conclude that employees will face a direct threat if they contract pandemic influenza and make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.
Employers may encourage employees to telework as an infection-control strategy during a pandemic.
An employer may require employees to wear personal protective equipment during a pandemic. (note, however, that this is otherwise regulated by OSHA workplace safety laws).
Employers must continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring an undue hardship.

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As this situation continues to evolve in the United States, our firm has developed a task force of labor, employment and OSHA attorneys to timely advise companies on the federal and state and local guidance and requirements.

For an update on these developments with COVID-19, please join us for our firm’s complimentary webinar on March 17, 2020, at 2:30 p.m. ET, on How Employers Can Respond to COVID-19 and Frequently Asked Questions. Click here to register.