As federal and state governments begin planning return-to-work scenarios, on April 17, the Equal Employment Opportunity Commission issued revisions to its COVID-19 pandemic questions and answers guidance. Among other things, the guidance addresses potential employment discrimination issues associated with returning laid off, furloughed, or teleworking employees to the workplace.
The EEOC repeats its earlier position allowing employers to take employee temperatures, ask questions, and otherwise try to keep symptomatic persons out of the workplace. Return-to-work scenarios based on such preventative measures will be permitted with individual employee identity and privacy safeguards in place. Employers may also require employees to wear personal protective equipment such as masks, but the EEOC notes that such requirements may result in accommodation requests based on disability (i.e., allergies) or religious objections. While such requests must be considered, the EEOC’s classification of COVID-19 as a direct threat to employee health may mean that any such accommodation requirements will be limited.
The guidance does not yet address issues that may be crucial to returning employees to work. Should employers return less vulnerable workers first, such as those under age 65? Can employers require COVID-19 testing of asymptomatic persons once such testing becomes widely available? If so, how often can such tests be administered? Can employers implement different terms and conditions of work and return to work for employees who have testing evidence of COVID-19 antibodies and some presumed degree of immunity? Future guidance from the EEOC will likely address these and other legal concerns.