EEOC Issues Updated COVID-19 Q&A

On April 9, 2020, the Equal Opportunity Employment Commission (EEOC) issued updated guidance concerning COVID-19 as it relates to the Americans with Disabilities Act (ADA), the Rehabilitation Act and other EEO laws. The updated guidance may be found here.

The updated guidance adds a section regarding the “Confidentiality of Medical Information.” It makes it clear that when an employer learns that an employee has COVID-19, it may disclose the name of the employee to a public health agency. This section also directs that an employer should not store any COVID-19 medical information in an employee’s personnel file, but may store all medical information related to COVID-19 in existing medical files. Similarly, employers may keep logs of their employees’ daily temperature checks, but must maintain the confidentiality of this information.

Additionally, according to the updated guidance, employers may ask employees entering the workplace about COVID-19 symptoms that have been identified by the Centers for Disease Control and Prevention (CDC), other public health authorities and reputable medical sources. For example, symptoms may now include a new loss of smell or taste and gastrointestinal problems.

The updated guidance adds a section addressing “Reasonable Accommodations.” It stresses the importance of employer flexibility and offers suggestions for potential low cost accommodations to reduce employee contact with others when a job may only be performed at the workplace and the employee is at a higher risk of contracting COVID-19 due to a disability. Accommodations may include, for example, using plexiglass, tables or other barriers to ensure minimum distances between customers and coworkers whenever feasible, as well as temporary job restructuring, temporary transfers or modified work schedules.

According to the updated guidance, employers may not unilaterally postpone a new employee’s start date or withdraw a job offer because the individual is 65 years old or older or is pregnant, both of which place them at higher risk for complications due to COVID-19. However, employers may choose to allow these individuals to telework or discuss with them whether they would like to postpone their start dates.

Finally, the EEOC added a new section entitled “Pandemic-Related Harassment Due to National Origin, Race or Other Protected Characteristics”. In this section, the EEOC encourages employers to reduce the chance of harassment that may arise as a result of COVID-19 by, among other things, explicitly communicating to their employees that fear of (or blame for) the COVID-19 pandemic should not be misdirected against individuals because of their national origin, race or other protected characteristic.

Stay tuned to Stevens & Lee’s Alerts and Newsletters and COVID-19 Resource Center for further legal updates related to COVID-19. In the meantime, if you have any questions about the updated EEOC guidance or other COVID-19 related legal questions concerning labor and employment law, please contact Jennifer A. Ermilio, Lisa M. Scidurlo or the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.

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