The EEOC has issued Frequently Asked Questions (“FAQs”) on the enforcement of various Equal Employment Opportunity (“EEO”) laws with regard to COVID. These laws include the Americans with Disabilities Act, the Rehabilitation Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and the Genetic Information Nondiscrimination Act.
Among other things, the FAQs provide that:
- The federal EEO laws generally do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated. (See our Health and Welfare Alert of 12/21/20 for further details.) Also, an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID vaccinations, if the standard is job-related and consistent with business necessity. If a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may still apply the standard to that employee if it can demonstrate that noncompliance would pose a “direct threat” to the health or safety of the employee or others in the workplace. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.
- During the COVID pandemic, employers may ask employees if they are experiencing symptoms of the virus. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on symptoms associated with the disease.
- If an employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he or she has COVID, has symptoms associated with COVID, or has been tested for COVID, the employer may bar the employee from physical presence in the workplace.
- When employees return to work, employers may require a doctor’s note certifying fitness for duty. Such inquiries are permitted under EEO laws either because they would not be disability-related or, when the pandemic is truly severe, they would be justified under the EEO standards for disability-related inquiries of employees.
- An employer may administer a COVID test when evaluating an employee’s initial or continued presence in the workplace. The mandatory medical test of employees must be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID pandemic, employers may take screening steps to determine if employees entering the workplace have COVID because an individual with the virus will pose a direct threat to the health of others.
- The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID in existing medical files. This includes an employee’s statement that he or she has the disease or suspects he or she has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
- An employer may screen job applicants for symptoms of COVID after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This rule applies whether or not the applicant has a disability.
- Employers may provide accommodations with regards to the pandemic as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.