During the Coronavirus health crisis, we, at the Wiley Law Office, have discussed everything from employer leave responsibilities to steps employers can take to protect employee health in the workplace. One thing we have not spent much time on is the EEOC’s guidance and advisories on employer conduct during the pandemic.
The EEOC has issued guidance on several occasions regarding employer conduct during the pandemic. It is clear that despite the changes in the normal workplace across the world, the EEOC will still be enforcing its regulations in the same way it did prior to the health crisis. However, the EEOC has stated it will do its part in not interfering with the guidelines and suggestions made by public health authorities.
Below are some highlights of the guidance provided by the EEOC in the past few weeks:
- Employers may ask employees who call in sick if they are experiencing symptoms of COVID-19.
- Employers must maintain all information about the employee illness as a confidential medical record in compliance with the ADA (separate file in lockable storage device). Employers may used already-existing medical files to store this information.
- Employers may ask employees entering the workplace if they are experiencing any of the symptoms associated with COVID-19.
- The EEOC considers measuring and employee’s body temperature to be a medical examination, but has granted a reprieve from the restrictions due to the dangers of the virus spreading. This does not hold true for all state laws that may restrict such testing, and there has been no guidance from the MDHR in this area as of yet.
- Employers may administer COVID-19 tests to their employees entering the workplace because an individual with the virus will pose a direct threat to the health of others. Again, this is a federal guideline, and has not been adopted by all states that may place restrictions on employee health examinations.
- Employers may delay the start date for employees who has COVID-19 or symptoms associated with the virus.
- Employers may not delay the start date of individuals who are either above the age of 65 or pregnant under the premise that those individuals are at higher risk from COVID-19.
- There may be reasonable accommodation for individuals whose disabilities put them at greater risk from COVID-19, such as reduced contact with others due to disability. However, excusing the employee from work altogether is not being considered a reasonable accommodation.
- Employers are expected to go through the accommodation process with employees who seek accommodation for mental conditions exacerbated by the pandemic, though not related to the contraction of the disease. Employers should be open to accommodation for those employees that does not cause undue hardship.
- Employers should give high priority to discussing requests for reasonable accommodations that are needed while teleworking. Employers can still engage in the interactive process with employees and request medical documentation. Employers may, however, provide temporary accommodations that are only effective during the pandemic, and readdress the requests after government limitations are removed.
- Just because someone is a “critical infrastructure worker” or “essential critical worker,” does not mean the ADA, Rehabilitation Act, or any other employment protections under Title VII do not exist for those employees.
- Employers should communicate to their workforce that fear of the pandemic should not be directed against individuals due to their race, national origin, or other protected class status.
- Employers should follow EEOC guidelines when agreeing to severance packages that include agreements not to sue under discrimination laws.
- Sexual harassment claims against spouses working in the same domicile together will not be considered by the EEOC if the spouses are working for different employers (just kidding).
The workplace for most Americans has changed greatly since the outbreak of COVID-19, but discrimination laws remain the same. Employers should carefully and swiftly respond to complaints of discrimination and requests for accommodation. On Wednesday, April 22, Governor Walz issued an executive order providing administrative flexibility for the Minnesota Department of Human Rights, allowing for the extension of timelines for investigation (but no guidance on medical examinations). If you, or your organization, are in need of assistance with adherence to federal or state guidelines and regulations, or responding to accommodation requests, contact the Wiley Law Office, for advice that works.