The EEOC provides a much-needed life vest for employers.
By Alex Leiva
News outlets, social media platforms, and firsthand experiences showcase the catastrophic impact of the COVID-19 (“coronavirus”) pandemic across a broad spectrum of the American (and global) economy without regard to industry, socioeconomic status, or other indicators traditionally associated with the modern economic system. Many businesses have been forced to close their doors for prolonged periods of time and others have had no choice but to proactively and reactively furlough, lay off, or terminate large portions of their workforces simply to stay afloat in the wake of significant decreases to business revenue. For those businesses fortunate enough to maintain operations over the last two months, and for those planning to re-open following the relaxation of state and local “shutdown,” “stay at home,” or “quarantine” orders, many questions remain. However, a singular question seems to dominate the minds of every business—how can they operate a safe workplace and successfully avoid a “liability trap” in the face of many laws made relevant by the pandemic (such as the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Families First Coronavirus Response Act, and other equal employment opportunity laws)?
We all know that businesses subject to the aforementioned laws (and other similar laws and regulations) are expected to balance seemingly competing concerns—ensuring the safety of their workforce as a whole while at the same time maintaining the statutory rights of each employee. Many businesses simply do not know what to do when considering, for example, whether daily workplace screenings are legally permissible, the type of information which may be requested from employees who call in sick, whether employees can be required to stay home if they report being sick, or whether doctor’s notes certifying fitness to return to work can be requested. In this regard, businesses are drowning in a sea filled with uncertainty, doubt, and most dangerous of all, legal risk.
In a bit of good news for employers desperately attempting to navigate these treacherous waters, the U.S. Equal Employment Opportunity Commission (EEOC) has thrown a life vest through its publication of guidelines which serve to address some of the concerns highlighted above. While this guidance in no way completely absolves employers from legal liability, at the very least it provides some clarity as to the steps employers are legally permitted to take in the workplace to balance the competing concerns previously highlighted. Most significant in the EEOC’s guidance is the express acknowledgement that certain medical inquiries and exams are now allowed as a result of the coronavirus pandemic.
To understand how significant this acknowledgment is, businesses must first consider the limitations traditionally imposed by the Americans with Disabilities Act of 1990 (ADA). Generally and except under limited circumstances, the ADA prohibits “disability-related inquiries” (inquiries which are likely to elicit information about a disability) and “medical examinations” (procedures or tests which seek information about an individual’s physical or mental impairments or overall health). The rules differ depending upon whether the disability-related inquiry or medical examination is conducted before a conditional offer of employment, after a conditional offer of employment but before commencement of employment, or after commencement of employment. A key exception to the general prohibition of such inquiries and examinations during employment is when either is conducted in situations where an employer has reasonable belief that an employee will pose a “direct threat” due to a medical condition. In its recent publications, the EEOC explicitly classified the coronavirus as such a “direct threat” due to the “significant risk of substantial harm [which] would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.” In so doing, the EEOC has now expressly permitted certain medical inquiries and examinations to be conducted in the workplace without violating the legal rights of employees as mandated by the ADA—although pre-offer disability-related inquiries and medical examinations remain prohibited even in the current state of the pandemic.
Of particular importance, the EEOC’s guidance provides that each of the following activities are permissible during the coronavirus pandemic:
- Employers may conduct a coronavirus test before permitting employees to enter the workplace, provided that such tests are accurate and reliable.
- Employers may measure employees’ body temperature.
- Employers may ask employees if they are experiencing symptoms related to the coronavirus (fever, chills, cough, shortness of breath, or sore throat).
- Employers may require employees to stay home if they are experiencing coronavirus-related symptoms.
- Employers may require that employees returning to work provide a doctor’s note certifying fitness-for-duty.
- Employers may screen applicants for coronavirus-related symptoms after making a conditional job offer and only if the employer does so for all applicants for the same job type.
While the EEOC’s guidance addresses other coronavirus-related concerns ranging from reasonable workplace accommodations to pandemic-related discrimination and harassment due to national origin, race, or other protected characteristics, it is safe to say that the consensus among business owners, scholars, and legal experts alike is that the EEOC’s relaxed guidelines on coronavirus-related inquiries and examinations are a huge sigh of relief for employers. The reason being that employers may now, without fear of legal retribution (all too common in today’s litigious society) take certain affirmative steps to reduce the risk of workplace exposure to COVID-19, minimize the potential of a COVID-19 outbreak and lessen its impact on business operations, maintain a safe working environment, and ensure the well-being of employees and the general public as a whole.
But, make no mistake about it, the EEOC’s guidance is not the proverbial “get out of jail free card” which employers understandably desire. Employers must still adhere to the many laws expressly prohibiting discrimination and harassment in the workplace based upon a disability or any other protected characteristic; mandating that all information acquired as a result of any coronavirus-related test, screen, or inquiry is stored separately from the employee’s general personnel file; limiting access to the medical file to designated human resources representatives; and compelling participation in the interactive process when a reasonable accommodation is requested or necessitated.
By the same token, employers should not take the EEOC’s guidance as an excuse to disregard other precautionary measures targeted to prevent the workplace transmission of the coronavirus. When and wherever possible, employers should require employees to engage in the following good hygiene and infection control practices (many of which have been recommended by federal governmental authorities):
- washing hands thoroughly on a regular basis;
- practicing regular social distancing even in the workplace;
- engaging in respiratory etiquette by, for example, covering coughs and sneezes;
- limiting the use of co-workers’ equipment; and
- routinely cleaning, disinfecting and sanitizing work areas and equipment.
The bottom line is that although the EEOC’s recent guidance is helpful for employers overwhelmed by the business downturn and other considerations caused by the coronavirus pandemic, they must still continue to tread carefully.
Alex Leiva is an associate in Greenspoon Marder’s Litigation practice group who focuses on employment law.
