April 28, 2020

The EEOC Continues to Update Guidance on Returning to Work Pandemic-Prepared

The EEOC continues to update its pandemic preparedness guidance regarding the Americans with Disabilities Act (ADA), the Rehabilitation Act, and other Equal Employment Opportunity laws in the wake of COVID-19. The guidance covers important return-to-work issues for disability-related inquiries, pre-entry medical screens, retention of medical information, and personal protective gear in the wake of COVID-19 closures.

Much of this guidance affects employers looking to re-open brick-and-mortar spaces while implementing new work routines that could result in unexpected or increased requests for reasonable accommodations. Employers will be under additional pressure to keep the workplace as safe as possible while balancing employee rights. Here are some important issues to work through before bringing a workforce back into the office:

What can an employer do if an employee calls in sick? An employer can ask if that employee is experiencing symptoms COVID-19: fever, chills, cough, shortness of breath, or sore throat. If the employer is retaining this information, it must be kept confidential (see below).

Can an employer administer temperature checks for employees and other building visitors? Yes. This applies to employees and post-offer, pre-employment applicants. Keep in mind that some locales, like Santa Clara County, actually require temperature checks for anyone (employee or visitor) entering a building. Check local ordinances, which could change or add on; some may only “urge” temperature checks. In addition, the CDC has published “community mitigation plans” which contain recommendations about temperature checks that vary by locality (Seattle, New Rochelle, Florida, Massachusetts). The EEOC, CDC, and OSHA have not issued specific requirements or “best practices” for how to administer these checks, but the CDC generally recommends that screenings be conducted before entry to a workplace. OSHA has issued general COVID-19 workplace guidance. The FDA, on the other hand, has put out explicit guidance that employers in retail food stores, restaurants, and food pick-up/delivery services should pre-screen employees. And while California state authorities have not put out guidance, Ohio and Delaware recommend touchless (forehead/temporal artery) thermometers if possible, and direct employers to disinfect thermometers if oral or other types of thermometers must be used due to procurement challenges. The CDC considers a person to have a fever when he or she has a measured temperature of at least 100.4°F.

Can an employer have employees take a COVID-19 test before entering the workplaces? Yes, if the employer determines there is a “direct threat” to the health of workers. The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Based on that standard and given the current pandemic, the EEOC says an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. An employer does, however, have a duty under the ADA to ensure the tests are accurate and reliable under FDA and CDC guidance.

Are there confidentiality concerns for inquiries to sick employees about COVID-19 and pre-work medical screening? Yes. Employers need to know that temperature checks are considered medical exams that are subject to ADA confidentiality requirements. The EEOC clarifies that the ADA requires all medical information about a particular employee be stored separately from the employee’s personnel file. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

What if an employee refuses to be tested? The EEOC said in a recent webinar that if an employee refuses, “the ADA allows an employer to bar an employee from physical presence in the workplace.” This applies if he refuses to answer questions about whether he has COVID-19, symptoms associated with COVID-19, or has been tested for COVID-19, as well as the ability to bar this employee’s presence if he refuses to have his temperature taken. The EEOC recommends that employers ask the reasons for the employee’s refusal and, if possible, provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace. Again, some local municipalities (including Santa Clara County) have their own orders/guidance urging and/or requiring temperature checks for employees before entering any building.

Can an employer require employees to wear personal protective gear? Yes. An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols). Employers should be aware of employees who need reasonable accommodations (i.e., non-latex gloves, modified masks, and gowns designed for persons in wheelchairs).

If an employee comes back after being sick, can an employer require a doctor’s note? Yes. This is permitted under the ADA either because it would not be disability-related or, if the pandemic were truly severe, it would be justified under the ADA standards for disability-related inquiries of employees. This may be difficult from both a practical and conflicting legal standpoint. First, doctors treating COVID-19 may be occupied and busy. The CDC discourages requiring doctor’s note for this exact reason, so employers should look into other options such as forms, stamps, or email certifications from local clinics. Second and relatedly, state and local laws may prohibit requiring medical documentation. Orange County’s Health Order, for example, does not require notes for “employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.” Also, note that the U.S. Department of Labor does not explicitly require documentation from a health care provider for an employee to be eligible for paid sick leave under the Families First Coronavirus Response Act.

Can an employer rescind a job offer if the applicant has COVID-19? Yes, if the employer needs that person to start immediately. Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer. Otherwise, an employer can delay the individual’s start date. An employer cannot postpone or withdraw an offer just because a person is “high risk,” however.

There are additional Q&As about relevant return-to-work considerations here. When evaluating whether your business needs to adjust its practices, carefully read the EEOC guidance but also stay on top of your state and local public health authority’s rules, as well as suggestions from the CDC, OSHA, and the FDA if relevant to your industry. These resources continue to rapidly evolve. If you have more questions about how to facilitate your company’s return-to-work plan, consult an attorney at Payne & Fears.