Last Thursday, the Equal Employment Opportunity Commission issued an expanded technical assistance Q&A on employment discrimination concerns associated with employers’ COVID-19 response efforts. The advisory does not make major changes to the EEOC’s March guidance, but it clarifies some of the agency’s earlier positions.
In general, the EEOC reiterates that employer efforts to control COVID-19 transmission in the workplace will not violate the Americans with Disabilities Act’s limitations on employee medical examinations. Employers may proceed with steps such as taking employee temperatures and sending sick people home. The EEOC reiterated the need to maintain the confidentiality of any such testing results, including separation of testing information from personnel records.
One of the key questions answered in the advisory deals with ADA reasonable accommodation obligations to employees with existing psychological conditions that are exacerbated by the COVID-19 emergency. The agency notes that “employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.” The EEOC says that employers must provide reasonable accommodations to diagnosed employees experiencing such difficulties.
Finally, the EEOC reminds employers of their obligation to enforce discrimination and anti-harassment rules against people who engage in workplace stereotyping based on national origin or race with respect to COVID-19 transmission risks. The new technical advisory can be found here.