More Guidance from Feds on Employer “Dos and Don’ts”

CLIENT ALERTS · September 15, 2020

Employers are hungry for definitive guidance on how to respond to COVID-19. With middling success, the Equal Employment Opportunity Commission (EEOC) has tried to meet this demand.

On September 8, the EEOC updated its guidance on COVID-19 to address 18 questions regarding the COVID pandemic and the Americans with Disabilities Act (ADA).  For the most part, the EEOC’s update confirms earlier guidance from the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA) regarding testing, screening, and prevention for COVID-19.  The EEOC’s guidance regarding teleworking, however, may leave employers facing difficult choices.

First, the testing and screening.  Employers are still able to COVID test employees before providing admission to the workplace, and periodically during employment.  Employers may also continue to screen for symptoms and elevated temperatures.  Given the differing infection levels throughout the United States, the EEOC has green-lighted questions about where an employee has traveled, again based on CDC, state or federal guidance.  For example, Massachusetts employers can ask whether employees have complied with the state’s 14-day travel quarantine for high infection areas.  The guidance also confirms that employee refusal to test is a legitimate basis to restrict the employee from the workplace.  (Trap for the unwary: employers should still review for possible accommodation of the refusal to be tested/screened).

The key to any testing is that it be “job related and consistent with business necessity.”  From the EEOC’s perspective, the connection between testing and a safe workplace, as explained by the CDC, meets the “business necessity” standard.  Testing also needs to be “accurate and reliable” and, as of September 8, antibody testing still falls short.  As with much of the guidance, the EEOC defers to the CDC for updates on test reliability.

In an interesting twist, the EEOC declared that questions about family members with COVID are off limits because of GINA (the Genetic Information Nondiscrimination Act), but then offered the alternate of asking employees about “contact with anyone [COVID positive/symptomatic].”  While this inquiry would certainly include family members, the key takeaway is to ask broadly, not solely about family.

Next, the EEOC addresses confidentiality challenges regarding COVID.  Starting with an affirmation that medical information must be kept separate from the employee’s personnel file, the EEOC details a number of instances in which disclosure is appropriate.  For instance, both supervisory and non-supervisory employees may disclose any COVID infections or symptoms to “employer officials,” based on the clear business need to know.  Confidentiality of a COVID positive employee is still the rule, so employers must continue to release a description (“someone on the fourth floor”) and not the employee’s name (unless authorized by the employee).

One of the thornier issues addressed in the guidance – and which regularly confounds employers – is whether COVID-19 has transformed “teleworking” into a near-mandatory accommodation for any employee with a disability who requests it.  Although the guidance says “no,” the EEOC’s analysis may suggest otherwise.  To set the stage, the EEOC recognizes that many current telework arrangements are temporary measures forced on employers by the pandemic, and that telecommuting employees may not fulfill all of the essential functions of a position.  The EEOC also agrees that when the restrictions are lifted, an employer can require the employee to resume the workplace-based functions.  But the trouble is, with the number of employees telecommuting during the pandemic (and the scramble of overlapping duties and responsibilities) employers could be left with no clear path to identify unmet “essential functions.”  What’s more, the EEOC guidance surmises that “the temporary experience [of telework] could be relevant to considering the renewed request.”  This leaves employers struggling to justify a denial of continued telecommuting.

For employers that wish to keep control of telework, one strategy is to document where/why working from home comes up short.  Does the telecommuting arrangement prevent ongoing supervision or training during the workday?  Are needed resources or personnel present at the workplace?  Is the employee’s presence needed to provide a controlled customer experience?  Articulating concerns like these now will support a later decision to require employees to report to the workplace.

If you would like to discuss managing telecommuting at your business in light of this guidance, please feel free to reach out to the author of this Alert, Chris Campbell  (ccampbell@princelobel.com; 617-456-8034), Dan Tarlow, Prince Lobel Employment Practice Group Chair (dtarlow@princelobel.com; 617-456-8013) or any member of Prince Lobel’s Employment Law team.

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