The EEOC has once again weighed in with updated guidance for employers to remain compliant when dealing with the COVID-19 pandemic in the workplace. The EEOC’s most recent FAQs are largely based on its webinar from March 2020, so much of the guidance may already be familiar to employers.
Among the new answers to FAQs, the EEOC indicates that employers are generally allowed to ask employees who are entering the workplace if they have, or are experiencing symptoms of, COVID-19, and/or the employer can administer a COVID-19 test. All questions and exams must be implemented consistently and in accordance with applicable law. This general permission does not, however, extend to employees who are teleworking or will otherwise not enter the workplace.
The EEOC confirms that employers may not specifically ask employees if their family members have, or are experiencing symptoms of, COVID-19, as such inquiries violate the federal Genetic Information Nondiscrimination Act (GINA). Employers should instead ask if employees have come into contact with anyone who has, or is experiencing symptoms of, COVID-19.
Employees who fail to answer legitimate questioning related to COVID-19 or who refuse to submit to consistent, legal testing can be barred from the workplace.
The EEOC update also provides guidance about confidentiality requirements pursuant to the ADA. For example, an employee who knows of or witnesses a coworker’s COVID-19 symptoms can legally report such to a supervisor. Employers and coworkers may also reveal if an employee is teleworking when staff need to be in contact with such employee. Employers and coworkers may not, however, disclose that the reason for telework is due to COVID-19 infection, symptoms, quarantine, etc.
Please note this current global emergency and applicable laws, regulations, proposals, guidance, advice, and responses change rapidly. We strive to keep you up to date as much as possible, but this blog article is intended for general informational purposes only and should not be construed as legal advice or opinion. Contact myHRcounsel with questions concerning specific facts and circumstances.
Written by Brittany Nicholls