EEOC COVID-19 Pandemic and Antidiscrimination Laws
This enlightening discussion addresses questions arising under any of the Federal Equal Employment Opportunity Laws and the COVID-19 pandemic
We're going to start by addressing questions that involve disability related inquiries and medical examinations. Our first question, “EEOC has explained in its updated 2020 EEOC pandemic publication that, at the present time, the COVID-19 pandemic permits an employer to take the temperature of employees who are coming into the workplace. Is there anything else an employer could do at the current time to determine if employees physically coming into the workplace have COVID-19 or symptoms associated with the disease?” At the time of this recording, again, March 27, employers may ask all employees who will be physically entering the workplace if they have COVID-19, or symptoms associated with COVID-19, or ask if they have been tested for COVID-19.
Symptoms associated with COVID-19 include, for example, cough, sore throat, fever, chills, and shortness of breath. An employer may exclude those with COVID-19 or symptoms associated with COVID-19 from the workplace, because as EEOC has stated, their presence would pose a direct threat to health or safety. For those employees who are teleworking, however, they are not physically interacting with co-workers, and therefore, the employer would generally not be permitted to ask these questions.
Next question, “What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he has COVID-19, or symptoms associated with COVID-19, or has been tested for COVID-19?” Under the circumstances existing again today, March 27, the ADA allows an employer to bar an employee from physical presence in the workplace 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.
To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee's refusal. The employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace. Sometimes employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. As we will discuss shortly, the ADA prohibits such broad disclosures.
Question 3, “May a manager ask only one employee, as opposed to asking all employees, questions designed to determine if she has COVID-19 or require that this employee alone have her temperature taken?” If an employer wishes to ask only a particular employee to answer such questions or to have her temperature taken, the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease. So, it is important for the employer to consider why it wishes to take these actions regarding this particular employee.
For example, if an employer notices that an employee has a persistent hacking cough, he could ask about the cough, whether the employee has been to a doctor, and whether the employee knows if she has or might have COVID-19. The reason these types of questions are permissible now is because this type of cough is one of the symptoms associated with COVID-19. On the other hand, if an employer notices that an employee seems distracted, then that would be an insufficient basis to ask whether the employee has COVID-19.