On Tuesday, the U.S. Equal Employment Opportunity Commission issued an update to its running guidance titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The updates address various issues that have perplexed employers for months, as well as certain specific questions posed to the EEOC during a March 2020 webinar. Some key additions include the following:
- Employers may still require a negative COVID-19 test before permitting employees to enter the workplace despite CDC guidance stating that a testing-based strategy is no longer recommended for determining when sick employees may return to work.
- Employers may ask all employees entering the workplace if they have been diagnosed with or tested for COVID-19. However, if an employer singles out an employee for such questioning, the ADA requires that the employer have a “reasonable belief based on objective evidence that this person might have the disease.”
- Employers may not ask employees if they have family members who have COVID-19 or symptoms associated with COVID-19 because such questioning is prohibited under the Genetic Information Nondiscrimination Act. Employers may still ask the equally useful question of whether employees have had contact with any individual diagnosed with COVID-19 or suffering the symptoms thereof.
- Employers may bar employees from the workplace if they refuse to participate in screening for COVID-19. Before taking such action, the EEOC recommends (but does not require) that employers first ask the employee to explain the reason for her refusal.
- Employers may ask employees about where they have traveled even if such travel is personal in nature. (Note: Before any employer takes action against employees based on recent travel, they should consult counsel regarding state laws that may protect employees from adverse action based on off-duty conduct.)
- Employers who previously granted telework to employees to slow the spread of COVID-19 are not automatically required to grant telework accommodations in the future. Rather, employers must engage in an individualized evaluation of each specific request to determine whether there is a disability-related limitation and any possible reasonable accommodations.