You can't ask that – workplace edition

More on coronavirus from the EEOC

The EEOC updated its guidance this week.

The Equal Employment Opportunity Commission this week updated its Q&A guidance on coronavirus and the federal anti-discrimination laws -- primarily, the Americans with Disabilities Act. A few of the updates are painfully obvious, but most will very helpful to employers.

Here is a summary. The parenthetical references are to the actual Question in the guidance.

Stuff employers can and cannot ask employees
Employers are allowed to test employees for COVID-19 (but not COVID-19 antibodies). Employers are responsible for keeping up with the latest guidance from the Centers for Disease Control and Prevention, and following that guidance. This also means periodically checking the CDC website and the website for the Food and Drug Administration for updates. (A.6)

It's also fine for employers to ask employees physically entering the workplace about symptoms of COVID-19 and whether they've been tested, and to not allow them in the workplace if the answers aren't satisfactory. However, employers cannot ask teleworking employees about COVID testing or symptoms. (A.8)

If an employee wants to single out one employee (or a few employees) to ask these questions, it has to have a "reasonable belief based on objective evidence" that the employee has COVID. This would be fine if the employee had symptoms of COVID, or if -- for whatever reason -- relevant CDC guidance or public health authorities said the employee should be treated differently from co-workers. (A.9)

The employer cannot ask the employee about whether the employee's family members have coronavirus or symptoms because that would violate the Genetic Information Nondiscrimination Act. Plus, it's too narrow. But the employer can ask generally whether the employee has been exposed to "anyone" who has COVID or symptoms of it. (A.10)

If an employee refuses to be tested or to answer questions, the employer doesn't have to allow the employee to enter the workplace. However, the EEOC encourages employers to first ask why the employee won't comply, and to try to explain the rationale for the testing or questions and reassure the employee that the information will be kept confidential. (A.11)

More things an employer can legally do:

• Ask onsite employees who say they aren't feeling well about the details of their symptoms (as necessary to determine whether they might have COVID). 
• Ask employees why they are absent from work. 
• Ask employees returning from travel where they went, to determine whether they visited a COVID "hot spot."

(A.12, A.13, A.14)

Maintaining confidentiality
If an employer learns that an employee has COVID or COVID symptoms, it can, of course, notify "appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities." However, they should not disclose the name of the employee unless they absolutely have to, and anyone who gets the name should be warned to keep it confidential.

The employer should not provide more than a generic description to other employees in the location or department of the employee who is sick. The EEOC acknowledges that in a small workplace, even if the employee isn't identified by name, everybody may figure out who it is. But "employers in that situation are still prohibited from confirming or revealing the employee's identity." (Emphasis is mine.) (B.5)

If an employee learns that a co-worker is having COVID symptoms, it will not violate the law for the employee to disclose that information to the employer. But, of course, the employer will have to be very careful about how to handle that information once received. (B.6)

More things an employer can legally do:

• Tell employees that an employee with COVID is working remotely. (Just leave out the "with COVID" part.) 
• If management or Human Resources is working remotely and it isn't possible to store employee medical information as required by the ADA, it's OK to keep the employee medical information at home. But the teleworking managers should do whatever they can to "safeguard this information," whether it's on paper or in electronic form, "to the greatest extent possible" until it can be properly stored.

(B.7, B.8)

Reasonable accommodation
It's fine for employers to "invite" teleworking employees to inform the employer now about any reasonable accommodations they may need when they go back to the worksite, and to begin the interactive process early. (D.8)

Accommodation needs might be different, depending on whether the employee is working remotely or working on site. Needless to say, the employer should consider the appropriate accommodations based on the circumstances. And it may be necessary to provide an "interim accommodation" while the employer and employee are engaged in the interactive process or "waiting for additional information." (D.14)

This is a big one: Allowing employees to telework during COVID-related shutdowns does not necessarily mean that the employer has to continue to allow teleworking after the worksite is back up and running. If an employee has a disability and teleworking would be a reasonable accommodation, then maybe. But if there is an accommodation other than telework that would be effective, the employer can choose the other accommodation. (D.15)

Also, even if the employer excused employees from performing one or more "essential functions" of their job during the shutdown, it doesn't lose the right to resume treating essential functions as such once the worksite reopens. As the EEOC says,

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework . . . does not mean that the employer permanently changed the job's essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. . . . The employer has no obligation under the ADA to refrain from restoring all of an employee's essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules."

(D.15) (Emphasis is mine.)

On the other hand . . . if the employer had refused to allow teleworking as a reasonable accommodation in normal times, and then allowed employees to telework during the COVID crisis, the employer should treat the COVID teleworking as a "trial period" and make a fresh assessment as to whether teleworking could work for an employee who needs it as a reasonable accommodation. (D.16)

More things an employer can legally do:

• Although an employer should be diligent in responding to reasonable accommodation requests, the EEOC recognizes that some employers may have backlogs and delays resulting from COVID-related disruption, and that's OK. The EEOC encourages employers and employees to find interim solutions while considering which accommodations to make in the longer term. (D.17)

"Captain Obvious"

• Don't select people for furlough or layoff based on "race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity." (F.2)
• Don't let your younger workers telework while refusing to allow older workers to do it. (H.2) On the other hand, if the older worker thinks an Etch-a-Sketch is a laptop, you might not have a choice.*

*LEGAL DISCLAIMER: The Etch-a-Sketch part was not in the EEOC's guidance. And I don't really think there is a correlation between advanced age and computer illiteracy.

This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers, New Jersey Human Resources Manual and Missouri Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).