Saturday, September 12, 2020
As we beforehand reported, because the outset of the COVID-19 pandemic, the U.S. Equal Employment Alternative Fee (EEOC) has issued directions, statements, and steering to assist employers navigate COVID-19’s office affect. On September 8, 2020, the EEOC up to date its “Technical Help Questions and Solutions,” which embrace updates regarding COVID-19 and the People with Disabilities Act (ADA) and different equal employment alternative legal guidelines beforehand printed within the company’s “Technical Help Steerage on Incapacity Lodging.” Among the many highlights are an enlargement on allowable worker COVID-19 testing, the addition of steering on COVID-19–associated medical inquiries, particular steering on dealing with confidentiality necessities and considerations within the age of COVID-19, and new steering regarding the ADA’s affordable lodging course of, with a selected emphasis on telework as an lodging. Whereas a number of the newest steering just isn’t essentially novel and was consolidated from different sources, as employers proceed to ramp up the return of staff to worksites and/or consider the continuation of COVID-19 work changes comparable to telework, a one-stop compilation of tips is all the time a invaluable and appreciated useful resource.
Incapacity-Associated Inquiries and Medical Exams
In earlier steering, the EEOC made clear that employers may require staff to undergo COVID-19 testing to judge whether or not it was protected for them to enter the office. The EEOC’s steering now additionally permits for employers to “periodically” take a look at these staff on work premises to find out if their “continued presence” poses a direct risk to others. The steering additionally reiterates the EEOC’s recognition of and deference to U.S. Facilities for Illness Management and Prevention (CDC) tips for COVID-19 testing, expressly stating that job-related testing that’s in keeping with CDC tips will meet the ADA’s “enterprise necessity” requirements.
Extra vital additions embrace tips regarding COVID-19 medical inquiries. The EEOC’s place now expressly permits an employer to ask staff getting into the office if they’ve COVID-19 or signs related to it, or if they’ve been examined for COVID-19. The EEOC additionally permits an employer to ask “one worker—versus asking all staff” COVID-19–associated questions, so so long as the employer has “an affordable perception primarily based on goal proof” that the worker may need the virus. The rules additionally permit employers, as a part of permissible office screening procedures in the course of the pandemic, to hunt particular details about signs from staff who report feeling sick, in addition to ask about worker journey.
Employers could not, nevertheless, ask an worker getting into the office if she or he has members of the family “who’ve COVID-19 or signs related to COVID-19.” The EEOC’s tips state that the Genetic Info Nondiscrimination Act (GINA) prohibits such inquiries. The EEOC’s inquiry prohibition appears to increase solely to members of the family, as the rules acknowledge that “GINA … doesn’t prohibit an employer from asking staff whether or not they have had contact with anybody recognized with COVID-19 or who could have signs related to the illness.”
Lastly, the rules allow employers to bar from entry or continued presence on the worksite any worker who refuses to undergo temperature testing or reply COVID-19–associated questions. The EEOC notes that “employers could want to ask the explanations for the worker’s refusal,” and reminds employers about obligations with regard to privateness, however the EEOC makes no point out of exceptions, comparable to non secular beliefs, that may permit an worker to bypass the screening.
Confidentiality of Medical Info
Including to its earlier basic steering concerning the privateness of applicant or worker medical data obtained by COVID-19 screenings, the EEOC offers solutions to particular confidentiality questions in its newest steering. For instance, the rules recommend that employers take precautions to guard the identification of an worker who has COVID-19 or signs, “limiting entry to this confidential data,” although the rules acknowledge that sure disclosures have to be made (e.g., to public well being officers and doubtlessly uncovered coworkers). Equally, the rules permit an worker to report back to a supervisor the COVID-19 signs of a coworker. The EEOC, nevertheless, permits an employer to withhold from employees COVID-19 details about an worker who’s teleworking due to self-quarantine necessities, or who was on go away on the time of analysis.
Eventualities associated to telework function prominently within the updates to the EEOC’s dialogue about affordable lodging underneath the ADA. For instance, the rules clarify that employers which have allowed staff to telework whereas workplaces have been closed could reinstate important job capabilities that had been briefly excused and assess requests to proceed telework as an affordable lodging on a case-by-case foundation. The rules additionally acknowledge that telework preparations briefly instituted in the course of the COVID-19 pandemic could present data that might be related to a dedication concerning whether or not an worker with a incapacity can carry out the important capabilities of the place whereas working remotely. In different phrases, the mere incontrovertible fact that an employer could have denied an worker’s lodging request to telework earlier than the pandemic won’t excuse the employer from contemplating a renewed request by the worker with a incapacity to proceed teleworking following the resumption of operations on the office. The rules additionally acknowledge that lodging which will have been allowed within the office won’t essentially be affordable when an worker is teleworking, and that the result of an interactive course of undertaken throughout a telework interval could diverge from an end result that was reached when the worker was working within the office.
As well as, the rules expressly acknowledge that the COVID-19 pandemic could delay the timeline for participating within the interactive course of for addressing lodging requests underneath the ADA. Reiterating earlier steering, the EEOC states that “[e]mployers and staff are inspired to make use of interim options to allow staff to maintain working as a lot as doable,” and underscores that employers could invite staff to start discussions about lodging which may be wanted earlier than they return to their workplaces. Nevertheless, per the rules, employers stay obligated to think about requests from staff who elect to not make requests upfront of a return date.
Furloughs and Layoffs
Employers proceed to make changes to the sizes of their workforces because the impacts of the COVID-19 pandemic proceed. The EEOC tips remind employers that the choice of people for non permanent or everlasting employment adjustments should not be made due to any protected attribute, together with the race, coloration, faith, nationwide origin, intercourse, age, incapacity, or protected genetic data of the person, or in retaliation for participating in protected exercise.
Versatile Preparations and the ADEA
In its June 2020 replace, the EEOC underscored that the Age Discrimination in Employment Act (ADEA) doesn’t prohibit coated employers from providing better flexibility to staff 65 years of age and older who’re at the next danger of extreme sickness in the event that they contract COVID-19. The ADEA prohibits much less favorable remedy of older employees, and the rules have been up to date to make this specific.
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