Tuesday, September 8, 2020
On September 8, 2020, the U.S. Equal Employment Alternative Fee (EEOC) issued up to date steering regarding COVID-19 and the office. The replace offers much-needed solutions to questions which were troubling employers struggling to adapt to circumstances offered by the still-ongoing public well being emergency.
Can we check workers for COVID-19 previous to permitting them again within the office?
The Individuals with Disabilities Act (ADA) typically prohibits employers from requiring workers to undergo medical examinations or testing. An exception exists, nonetheless, when that testing is “job associated and in keeping with enterprise necessity.” The EEOC’s up to date steering explains that so long as the testing is in keeping with present steering from the Facilities for Illness Management and Prevention (CDC), employers can administer COVID-19 testing to workers previous to initially permitting them again into office. Employers additionally could periodically check workers who’ve returned to work to substantiate that they don’t have the virus and thereby current a direct menace to others. The EEOC’s up to date steering confirms that testing underneath these circumstances – once more, as long as the testing is compliant with present CDC steering – will meet the “enterprise necessity” normal underneath the ADA.
Can we ask returning workers if they’ve had COVID-19, or if they’ve been examined for it?
The EEOC steering signifies that employers could ask workers whether or not they have been recognized with COVID-19, are experiencing any COVID-19 signs, or if they’ve been examined for COVID-19, as long as: 1) all workers are requested the identical questions; or 2) if not all workers will likely be requested these questions, the employer asks solely these workers about whom it has an affordable perception primarily based on goal proof that the worker could have COVID-19; and three) the questions are requested solely of workers bodily getting into the office (and never these teleworking).
Can we ask returning workers if anybody of their household has COVID-19 or COVID-19 signs?
No. The EEOC steering explains that such inquiries are prohibited underneath the Genetic Data Non-Discrimination Act (GINA). Employers could, nonetheless, ask workers whether or not they have been in shut contact with any individuals (not simply relations) who’ve been recognized with COVID-19 or who’ve signs related to COVID-19.
What can we do if an worker refuses to be examined or reply questions on COVID-19 an infection, signs, or testing?
The EEOC steering confirms that underneath the current circumstances attributable to the pandemic, an employer could bar an worker from being bodily current within the office if she or he refuses to, for instance, have his or her temperature taken or reply questions on COVID-19 issues (e.g., signs, testing).
One in every of our workers was absent from work for per week. Can we ask why?
As a result of it’s not a disability-related inquiry, the EEOC steering signifies that employers could ask workers who have been absent from work the rationale for his or her absence.
Along with addressing these questions, the up to date EEOC steering additionally offers solutions to a number of questions regarding employers’ obligation to take care of the confidentiality of worker medical data. It additionally addresses how teleworking will likely be evaluated as an lodging underneath the ADA for an worker’s incapacity if the employer allowed workers, disabled or not, to telework in the course of the pandemic. The EEOC explains that though an employer could have permitted workers to telework in an effort to gradual or cease the unfold of COVID-19, that doesn’t imply that telework will routinely be an affordable lodging for individuals with disabilities as soon as the employer reopens the worksite.
Extra questions are certain to come up as we head (hopefully) to a decision of the pandemic. We are going to proceed to offer updates as further steering turns into out there.