Late last week, the EEOC posted a webinar with question and answer guidance for employers about the COVID-19 situation. The webinar is nearly 45 minutes long and contains practical guidance for employers during this crisis, especially as it relates to the ADA and reasonable accommodations for employees with disabilities. But here are a few of the more general highlights applicable to all employers:

• Employers may take the temperature of employees coming into the workplace and ask employees if they have COVID-19, have symptoms of COVID-19 (including cough, sore throat, fever, chills, and shortness of breath), or have been tested for COVID-19.
• Employers may exclude those with COVID-19 symptoms (and those who refuse to answer the above questions) from the workplace because their presence poses a direct threat to the health and safety of others, but employers should not ask these questions of those working remotely and not coming into the workplace.
• Employers may ask all employees coming into the workplace these questions (and/or take their temperatures), but should not single out any specific employee to ask (without asking others) unless they have a reasonable belief based on objective evidence that the employee may have COVID-19. For example, if an employee has a persistent hacking cough, the employer can ask him about the cough, whether he has been to a doctor, and whether he might have COVID-19. But if the employer notices an employee seems to be distracted, that would be an insufficient basis on which to ask those questions.
• An employer is permitted to ask employees about their contact with anyone who the employee knows has been diagnosed with COVID-19 or may have COVID-19 symptoms, but the employer should not limit that inquiry to only ask about family members of the employee (this may violate the Genetic Information Nondiscrimination Act).
• Employers may not automatically exclude from the workplace (by requiring them to telework, forcing them to take leave, laying them off, or otherwise) employees over the age of 65 or those who are pregnant – if the employee has not tested positive for COVID-19 and does not have any symptoms – simply because the CDC has identified them as higher risk with regard to the virus. Likewise, an employer is not required to grant such an employee’s request to telework if it is not granting similar requests to others who are younger or not pregnant.
• If an employee has an ADA disability that puts him at greater risk with regard to COVID-19 (chronic lung disease, serious heart condition, or others identified by the CDC) and asks for a reasonable accommodation in the form of telework, leave, or other job modifications, the employer may verify that the employee does have the disability and that the accommodation is necessary because the employee’s specific disability puts him at higher risk. A reminder that, if the employer is seeking documentation from a healthcare provider in that respect, the current crisis makes it so many doctors may have difficulty responding quickly. Employers may be able to verify the necessary information in other ways (for example, from a health insurance record of prescription) and may want to consider providing the accommodation on a temporary basis during the interim while the employer waits to receive information from a healthcare provider.
• If an employee lives in the same household with someone who is at greater risk with regard to COVID-19, the employer is not required to accommodate them with telework or leave (but, as a practical matter, the employer should consider whether it allows other employees such an accommodation and if it is treating this employee differently).
• If a manager learns that an employee has COVID-19 or related symptoms, the manager should report that information to only those appropriate management officials with a “need to know” – so that they can take action to notify those with whom the employee has come into contact. Management officials who are contacting others should not name the employee. Even if other employees can figure it out, the employer is still prohibited from revealing or confirming the employee’s identity. Both the manager and all other employer representatives should remember that the ADA requires medical information to be kept confidential.
• If a coworker knows that another employee has symptoms, and both of them report to the physical workplace, the coworker should report that information to his or her supervisor. The supervisor should then contact appropriate management officials as discussed in the previous bullet point.
• If an employer knows that an employee is teleworking or on leave because the employee has COVID-19 or its symptoms, the employer may notify coworkers of the fact that the employee is working remotely or on leave, but the employer should not disclose the reason why the employee is doing so.
• Employers should notify public health authorities if they learn that an employee has COVID-19.
• Remember that even while teleworking, medical information of employees must be kept confidential (and typically requires that information to be kept separate and access restricted). Supervisors and management should follow regular procedures if they can, but if that isn’t feasible, they must still safeguard that information as much as possible until it can properly be stored. Medication information/documentation should not be stored electronically where others have access, hard copy materials like notepads should not be left out where others can see them, and supervisors may want to consider using initials instead of the employee’s full name.

As the situation evolves, the EEOC’s guidance may as well. For example, it did not address the possibility of more stringent government action restricting our movements or work. But, for now, this is advice you should heed. If the EEOC amends it, we will bring it to you.

By Rebecca D. Bullard, rbullard@dsda.com