In response to COVID-19, the Equal Employment Opportunity Commission (EEOC) has updated and/or provided guidance related to the current employment concerns specific to the pandemic.  The guidance offers helpful insights into how the agencies are balancing changes to normalcy, along with legal requirements posed by a variety of employment laws.  (For a different recent example of agency guidance, see this week’s companion article, describing OSHA’s information on safety training, inspection, and recordkeeping requirements in the context of COVID-19.)

This article highlights a few items included in the EEOC guidance, issued April 9, 2020, but there are many other items addressed by the guidance, including links to other updated guidance.This guidance addresses various employment laws, but is primarily focused on items related to the Americans with Disabilities Act (ADA) and the Rehabilitation Act.  Topics generally include disability-related inquiries, medical exams, confidentiality of medical information, impact on hiring and onboarding, and reasonable accommodation.

Based on the declaration of pandemic, employers may ask about symptoms related to COVID-19.  One important item is to recognize that employers can update or revise the inquiries to reflect the latest, reliable medical information.  The EEOC’s guidance explicitly directs employers to “rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms.”   Specifically mentioned are newer symptoms such as loss of smell or taste, and gastrointestinal problems.  Even though employers may ask about COVID-19 symptoms, as with non-COVID inquiries, any medical information should be kept confidential in separate medical files.

With regard to new employees, including some who may not yet have started work, employers have a variety of options.  After a conditional offer of employment, employers may screen for COVID-19 symptoms, as long as such screening is done for everyone entering the same type of job.  If someone does have symptoms, the start date may be delayed. 

The guidance additionally states that an offer can be withdrawn if the person is needed to start immediately, but as a practical matter, employers should be cautious with this option.  For instance, even though circumstances may involve a need to fill the position immediately, if there are not other candidates immediately available, a delayed start date may make more sense and pose less risk of challenge.

The recent guidance also links back to updated pandemic guidance issued on March 21, 2020.  An example of the general interest topics includes the following information regarding permissible inquiries related to circumstances of the pandemic (quoted from the EEOC pandemic guidance update):

ADA-Compliant Pre-Pandemic Employee Survey

Directions: Answer "yes" to the whole question without specifying the factor that applies to you. Simply check "yes" or "no" at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

• If schools or day-care centers were closed, you would need to care for a child;

• If other services were unavailable, you would need to care for other dependents;

• If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;

• If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: YES______ , NO_______

The agency guidance is helpful in these unusual times, but is merely summarized here.  As the new normal starts to take shape, we can still expect there to be legal challenges (and some lawsuits are already being filed), so as always, exercise caution and consider consulting with counsel for these difficult employment decisions.