Keep Employees Safe From COVID-19 Without Discrimination

How can an employer keep its workforce safe from COVID-19 exposure on the job, while still following medical privacy rules? The Equal Employment Opportunity Commission (EEOC) may be able to help, as it reviews how COVID-19 workplace issues intersect with recommendations from the Centers for Disease Control (CDC) and with various laws.

The relevant laws include the Americans with Disabilities Act (ADA), certain provisions of the U.S. Civil Rights Act and the Equal Employment Opportunity Act. In March 2020, a stream of information in question-and-answer form began flowing that may help you tackle COVID-19 issues in your business. Here are condensed versions of some recent Q&As. The complete set can be found on the EEOC’s website (EEOC.gov).

Q: May an employer administer a COVID-19 test when evaluating an employee’s initial or continued presence in the workplace? 

A: The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workforce have COVID-19 to contain the direct threat posed by individuals with the virus. Therefore, an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace is a danger to others.

Q: May a manager single out a specific employee for questioning to determine if he or she has COVID-19, or require that this employee alone have a temperature check or undergo other screening or testing? 

A: If an employer wishes to ask only an individual employee to answer such questions, or to have a temperature check or undergo other screening or testing, ADA requirements must be met. That is, the employer must have a reasonable belief based on objective evidence that this person might have the disease. So, it’s important for the employer to consider why these actions should be taken for a particular employee, such as a display of COVID-19 symptoms.

Q: What may an employer do under the ADA if an employee refuses to submit to a temperature check or to answer COVID-19-related questions?

A: The ADA allows an employer to bar an employee from physical presence in the workplace if the worker:

• Refuses a temperature check,
• Refuses to answer questions about whether he or she has COVID-19 symptoms associated with COVID-19, or
• Has been tested for the virus.

To gain the cooperation of employees, employers may wish to ask the reasons for the refusal. The employer may be able to provide information or reassurance that they’re taking these steps to ensure the safety of everyone in the workplace and that these steps are consistent with CDC health screening recommendations.

Q: What should a manager do if he or she learns that an employee has COVID-19 or COVID-19 symptoms? Can the manager disclose this information without violating ADA confidentiality?

A: The ADA requires an employer to keep all medical information about employees confidential, even if that information isn’t about a disability. Clearly, the information that an employee has symptoms or a diagnosis of COVID-19 is medical information. But the fact that this is medical information doesn’t prevent the manager from reporting it to appropriate employer officials.  

Those officials can then take actions consistent with guidance from the CDC and other public health authorities. The real question is what information to report. Is it the fact that an unnamed employee has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Determining who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who know the name of the employee.

Q: Is an employee entitled to an accommodation under the ADA to avoid exposing a family member who’s at higher risk of severe illness from COVID-19 due to an underlying medical condition?

A: No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA doesn’t require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom he or she is associated. Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected Equal Employment Opportunity basis.

Q: When an employer that grants telework to employees for the purpose of slowing or stopping the spread of COVID-19 reopens the workplace, what’s the employer’s obligation to continue to offer telework? Is the employer required to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?

A: No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there’s no disability-related limitation that requires teleworking, then the employer doesn’t have to provide telework as an accommodation. Or, if there’s a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

Q: Do employees who are 65 and over have protections under the federal employment discrimination laws?

A: Individuals who are 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus. Therefore, employers are encouraged to offer maximum flexibilities to this group.

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals who are 40 and older. The ADEA would prohibit a covered employer from involuntarily excluding an individual who is 65 or older from the workplace based on his or her age, even if the employer acted for benevolent reasons, such as protecting the employee due to higher risk of severe illness from COVID-19. Unlike the ADA, the ADEA doesn’t include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers who are 65 and older. The ADEA doesn’t prohibit this, even if it results in younger workers who are 40 to 64 being treated less favorably than those who are 65 and older.

For More Information

The answers to some of these questions have been abridged due to space considerations. Review the EEOC’s full response or get in touch with an employment law specialist if you’re confronting any COVID-19-related concerns in the workplace.