November 27, 2022

Volume XII, Number 331

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The Equal Employment Opportunity Commission Weighs in on COVID-19

The Equal Employment Opportunity Commission (EEOC) issued a public statement on its website on Wednesday, March 18, 2020, providing updated guidance on acceptable employment practices in light of the ongoing COVID-19 pandemic. The statement highlights common questions employers may have regarding how to manage employee issues related to COVID-19 and provides guidance.

The EEOC’s statement clarifies that employers are permitted to ask employees if they are exhibiting symptoms of COVID-19 and may require employees who are exhibiting those symptoms to stay home from work. Employers may also delay the start date of or withdraw a job offer from a future employee who has or is exhibiting symptoms of COVID-19.

The most notable piece of information from the EEOC’s release is the Commission’s stated position, given the CDC’s warnings regarding the dangers of COVID-19 and community spread, employers may measure employees’ body temperature. Generally, taking an employee’s temperature is considered by the EEOC to be a medical examination and is therefore prohibited absent specific circumstances. However, given the crisis, employers are now permitted to measure employees’ temperature (although the EEOC notes many individuals with COVID-19 will not have an elevated temperature). 

The EEOC’s guidance also clarifies that the ADA allows employers to require doctors’ notes certifying fitness for duty before an employee returns to work from a pandemic-related absence. The EEOC indicates such inquiries are permitted under the ADA because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries. The EEOC notes health care professionals may be too busy during and immediately after the pandemic outbreak to provide fitness-for-duty documentation. Accordingly, employers may need to rely on local clinics to provide a form, a stamp, or an e-mail to certify an individual does not have the pandemic virus.

Additionally, all employers should continue to be aware that the discriminatory application of COVID-19-related questioning or policies, including measuring employees’ temperature, based on any federally protected class (such as age or national origin) remains prohibited by law and would subject the offending employer to legal penalties.

To review the EEOC’s March 18, 2020 statement, click here: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

The law on permissible employment practices in the face of this pandemic is changing on a daily basis and may vary significantly depending on the industry in question or the state in which the employer is located. 

© 2022 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume X, Number 78
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About this Author

Faith Whittaker, Dinsmore Law Firm, Cincinnati, Labor and Employment Law Attorney
Partner

A partner in the Employment, Labor and Benefits Department, Faith has experience guiding clients through issues that arise in the workplace. She handles employment-related litigation for her clients, who range from local businesses to Fortune 500 companies.

Understanding each client has different tolerances and objectives in dealing with employment matters, Faith is passionate about learning her client’s industry and gaining insight into their operations. While always prepared to vigorously proceed through litigation, she teams with her clients...

513-977-8491
S. Joseph Stephens, III Associate Labor Employment Cincinnati
Associate

Joe’s practice primarily focuses on assisting client employers of all sizes with a wide range of labor and employment issues.  He has counseled employers on matters involving the Fair Labor Standards Act, Title VII of the Civil Rights Acts, the Americans with Disabilities Act, the Family and Medical Leave Act, the National Labor Relations Act, and employment contract law.

Joe has substantial experience defending employers against charges filed with the Equal Employment Opportunity Commission and similar state employment commissions, as well as matters in state and federal courts...

513-832-5452
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