September 10, 2020
Employers navigating through the process of returning employees to the workplace must be aware of guidance from the Department of Labor and, importantly, the Equal Employment Opportunity Commission (EEOC). On September 8, the EEOC supplemented its materials related to COVID-19 (which are collected at www.eeoc.gov/coronavirus) to provide employers with guidance on the confidentiality of employees’ medical information and, in that regard, what would constitute acceptable practices and questions directed to returning employees. In summary form, the new guidance is as follows:
Q: May an employer administer a COVID-19 test when evaluating an employee’s initial or continued presence in the workplace?
Yes. The employer may administer COVID-19 testing to employees before allowing them back into the workplace and also periodically to determine whether their presence would be a direct threat to other employees. The tests used must be considered accurate and reliable by the Centers for Disease Control (CDC) and Food and Drug Administration (FDA).
Q: May the employer ask all employees reentering the workplace if they have been diagnosed with or tested positive for COVID-19?
Yes. However, for employees who are working from home or not interacting with coworkers and others, such questions generally may not be asked.
Q: May a manager ask only one employee questions regarding whether they have COVID-19 or require that they have their temperature taken or undergo screening or testing?
Yes, but only if the employer has reasonable belief based on objective evidence that this person might have COVID-19 or associated symptoms.
Q: May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or associated symptoms?
No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. Such employees may be asked, however, whether they had contact with anyone diagnosed with COVID-19 or who may have associated symptoms.
Q: What may an employer do under the Americans with Disabilities Act (ADA) if the employee refuses to have their temperature taken or answer questions about whether they have COVID-19 or associated symptoms, or has been tested for COVID-19?
Generally speaking, the ADA allows an employer to bar an employee from the workplace if they refuse to have their temperature taken or answer questions about whether they have COVID-19, or associated symptoms, or have been tested for it.
Q: During the pandemic may an employer question employees who report feeling ill or who call in sick about their symptoms?
Yes. For employees who work on site and report feeling ill or who call in sick, questions about their symptoms are allowed.
Q: May an employer ask an employee why they have been absent from work?
Yes. Asking an employee why they did not report to work is not a disability-related inquiry, and the employer is entitled to that information.
Q: When an employee returns from travel during the pandemic, must an employer wait until they have developed COVID-19 symptoms to ask questions about where they have traveled?
No. Questions about travel are not considered to be disability-related inquiries and may be asked.
Q: May a manager report an employee who has COVID-19 or associated symptoms without violating ADA confidentiality requirements?
Although all medical information about employees must be kept confidential, even if the information is not related to a disability, a manager may report an employee with COVID-19 or associated symptoms as long as they take actions consistent with guidance from the CDC. First, the ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of potential contacts through the workplace. The employer can then take action to notify those who may have come in contact with the employee but without revealing the employee’s identity. The examples the EEOC used were telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19 is acceptable. Employers are still prohibited from confirming or revealing the employee’s identity. Second, all employer officials who are designated as needing to know the identity of an employee must be specifically instructed that they must maintain confidentiality of that information. That same guidance applies with respect to whether an employee may report a coworker who has COVID-19 symptoms to a supervisor.
Q: If an employee is working remotely because they have COVID-19 or associated symptoms, may an employer reveal that to employees?
No. The employer may state that an employee is teleworking but must not reveal that an employee has COVID-19.
Obviously, with small employers, much of the confidentiality required will not be terribly practical. A company’s grapevine can work very quickly, and an employer may find that everyone in the workplace is aware of the identity of the individual with COVID-19 or associated symptoms. However, it is very important to note that no employer official may confirm the identity of the employee with COVID-19 or associated symptoms.
A question left unanswered is whether an employee may waive the confidentiality required under the ADA by allowing the employer to use his or her name when contacting other employees who may have had contact with that person. To be safe, the employee’s confidentiality should be maintained, even if the employee has given the employer authorization to reveal their name and the fact that they have COVID-19 or associated symptoms.
|Labor and Employment:|
Diana Morales McFarland
Contact information for the complete McGrath North’s COVID-19 Response Team can be found here.
For information regarding additional business-related concerns centered around COVID-19, please visit our COVID-19 Resource Guide here.