AS MANY AMERICANS HEAD BACK TO THE WORKPLACE, EEOC UPDATES ITS PANDEMIC EEO GUIDANCE:
WHAT CAN EMPLOYERS DO & WHAT CAN EMPLOYEES DEMAND?
On June 11, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its guidance on COVID-19-related employment issues. In its published document, “What You Should Know About COVID-19 and the ADA[1], the Rehabilitation Act, and Other EEO Laws,” available on its website, the EEOC tackles various FAQs related to both employer and employee rights during the pandemic.
Previous guidance issued in March and April from the EEOC addressed various issues related to keeping workplaces COVID-19 free, including that an ADA-covered employer MAY:
· Screen job applicants and employees for COVID-19 symptoms;
· Take body temperatures of job applicants and employees during the pandemic;
· Require an employee to stay home if they have COVID-19 symptoms;
· Require a doctor’s certification of fitness before allowing employees to return to work; and
· Administer COVID-19 tests to its employees.
While employers may take these steps, employees have the right to keep answers to screening questions and results of COVID-19 tests housed separately from their personnel files and confidentiality is to be maintained (though a positive test can be disclosed to public health agencies).
The EEOC guidance notes that while federal EEO laws protecting workers’ rights, like the ADA and Rehabilitation Act, continue to apply with equal force during the pandemic, “they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities.”
Since the EEO laws remain in full force and effect, if an employee has a “disability” under the law, he or she is entitled to the same reasonable accommodations as were available pre-pandemic, and may also be entitled to additional or altered accommodations during the pandemic absent “undue hardship” to the employer. There is no carve-out for essential workers. The laws entitling disabled workers to reasonable accommodations include those who the CDC has termed “classified as critical infrastructure” or “essential crucial workers.”
Employers may still not discriminate based on disability, pregnancy or age. New guidance issued on June 11th makes it clear that covered employers may NOT exclude employees solely because they have a pre-existing condition and are in a group identified by the CDC as at “higher risk for severe illness” if COVID-19 is contracted. This includes pregnancy and age. Therefore, unless an employee requests a reasonable accommodation under the law for a recognized “disability,” the ADA does not allow the employer to unilaterally exclude an employee even if it is concerned that returning the employee to work may jeopardize his or her health. Likewise, older workers cannot be excluded from work just because the CDC has classified individuals age 65 and over at a “higher risk” for severe complications with COVID-19. Employer motivation is irrelevant. The guidance instructs, “the ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.”
The EEOC continually updates its guidance, and both employers and employees should keep apprised of all new guidance as it comes out. As more employees prepare to return to the workplace this month, it is critical for both employers and employees to understand how federal, state, and local laws intersect and impact employment at this time.
Ms. Nannis is a principal in JGL’s Qui Tam and Civil Litigation practice groups. She primarily represents whistleblowers who report fraud on the government in False Claims Act (qui tam) litigation. While she has experience in numerous types of complex, civil litigation, she focuses on healthcare, kickback cases and class actions across the country. She can be reached at vnannis@jgllaw.com
[1] Americans with Disabilities Act of 1990, 42 U.S.C. § 12101.
