New EEOC Virus Advice Touches On Screenings, Medical Info

By Danielle Nichole Smith
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Law360 (April 10, 2020, 4:30 PM EDT) -- The U.S. Equal Opportunity Employment Commission has given employers more direction for navigating the COVID-19 outbreak, updating existing guidance to add advice on issues such as screening employees coming into the workplace and pandemic-related harassment.

The EEOC on Thursday expanded its technical assistance questions and answers to include more of employers' common inquiries around compliance with employment law during the coronavirus outbreak. The agency said that it "will continue to monitor developments and provide assistance to the public as needed" in its press release about the changes.

In its response to one of the newly added questions, the EEOC told employers to look to the Centers for Disease Control and Prevention, other public health authorities and "reputable medical sources" for guidance on what questions they might want to ask when screening workers coming into the workplace to see if those workers pose a threat to others.

And the agency also offered employers advice on reducing and addressing workplace harassment related to the pandemic, saying that explicitly telling workers not to misdirect their pandemic fears against individuals because of their race or national origin or other protected characteristics could help lower the chance of a problem.

The EEOC additionally addressed a number of inquiries centering on issues surrounding the confidentiality of medical information and reasonable accommodations. In one response, the agency said that employers can tell public health agencies the names of workers they learn have COVID-19.

But in another, the agency noted that if employers have daily temperature checks for entering work, they must keep that information confidential. Employers are also required by the Americans with Disabilities Act to store medical information about workers separately from their personnel files, though they can keep information related to COVID-19 in the employees' existing medical files, according to the agency.

The EEOC also counseled employers that there could be reasonable accommodations for workers with jobs that can only be performed on-site and who have a disability that puts them at greater risk from COVID-19, saying that "low-cost solutions achieved with materials already on hand or easily obtained may be effective."

Additionally, the agency noted that workers with preexisting mental health conditions might have a harder time dealing with "the disruption to daily life that has accompanied the COVID-19 pandemic." In such cases, employers are able to take the same steps they would with any accommodation request, the EEOC said.

The agency further told employers that they shouldn't necessarily put off conversations about accommodations that won't be needed until an employee returns to the workplace after a mandatory teleworking period and said that workers already receiving accommodations might be entitled to an additional or modified accommodation.

Other answers from the EEOC informed employers that they can't delay start dates or withdraw job offers because someone is pregnant or older than 65 and at higher risk from COVID-19, and pointed out that there are special rules for employers offering severance packages in exchange for a general release of discrimination claims.

--Editing by Jack Karp.

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