EEOC’s Updated COVID-19 Guidance on Testing and Privacy Issues
By Aaron Chaet
On September 8, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance regarding COVID-19 and how it interacts with the Americans with Disability Act (“ADA”) and related EEO laws.FN1 The EEOC’s guidance focused on three major categories: (1) Disability-Related Inquiries and Medical Exams, (2) Confidentiality of Medical Information, and (3) Reasonable Accommodations.
(1) Disability-Related Inquiries and Medical Exams
Employers are permitted to administer COVID-19 tests when evaluating an employee’s initial or continued presence in the workplace.FN2 Under the ADA, mandatory medical testing is permissible if employees, such as those carrying COVID-19, pose a direct threat to the health of others.FN3 Employers are, therefore, permitted to administer COVID-19 tests prior to returning employees to work and even periodically to determine if their presence in the workplace poses a direct threat to others.
Employers may also ask all employees who are physically returning to work if they had been diagnosed with or been tested for COVID-19. Employers are permitted to exclude those with COVID-19 or associated symptoms.
Employers, however, may not ask employees if they have family members who have COVID-19 or associated symptoms. This is unlawful under the Genetic Information Nondiscrimination Act (“GINA”) which prohibits employers from asking employees medical questions about their family members.FN4. To avoid this improper inquiry, employers should instead ask an employee if they have been in contact with anyone who has COVID-19 or associated symptoms.
Employers may also ask employees why they have been absent from work and whether they received a COVID-19 diagnosis and have any associated symptoms.
(2) Confidentiality of Medical Information
The ADA mandates that employers maintain the confidentiality of employees’ medical information.FN5This includes the identity of employees diagnosed with COVID-19 or displaying the associated symptoms.FN6 Employers, however, do not violate the ADA if this information is relayed to an employer’s designated representativeFN7 so that he or she can conduct an investigation to determine a list of individuals with whom the sick employee possibly had contact and take the necessary action to notify impacted employees. During the investigation, the designated representative should not disclose the sick employee’s name, but rather should use “generic descriptors” such as “someone at this location” or “someone on the fourth floor” has COVID-19.
The ADA also does not prohibit employees from communicating to a supervisor if they observe another coworker displaying COVID-19 symptoms. The supervisor, however, should only report this information to the company’s designated representative.
(3) Reasonable Accommodations
Employers who granted teleworking to employees during COVID-19 to stop or slow the spread in the workplace are not required to automatically grant teleworking as a reasonable accommodation to every employee with a disability who requests to continue the arrangement. Rather, if an employee requests to continue teleworking as an accommodation after the office has been reopened, an employer is only required to engage in a good faith discussion to determine whether it would be a reasonable accommodation. This would include a detailed analysis into whether an employee can continue to perform the essential functions of the position and does not create an undue hardship or a direct threat.FN8
TAKEAWAY
As businesses throughout the country continue to reopen, it is important that employers are cognizant about the health of employees as well as their rights to privacy under the ADA and GINA. Employers with concerns about balancing these issues should contact the attorneys at Campbell Litigation to discuss best practices for handling health and privacy issues related COVID-19.
Footnotes:
FN1- “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and the Other EEO Laws,” available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
FN2- Even though the EEOC’s guidance is limited to employers that administer COVID-19 tests, relying on the EEOC’s interpretation of ADA’s definition of “business necessity” and “direct threat,” employers should also be able to require that its employees independently undergo COVID-19 testing prior to returning to work.
FN3- Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. 29 CFR § 1630.2(r)
FN4- 42 U.S.C. § 2000ff-1(b)
FN5- 42 U.S.C. §12112(d)(4)(C)
FN6- 42 U.S.C. §12112(d)(4)(C)
FN7- Designated representatives are supervisors or mangers selected by an employer to receive information regarding employees with COVID-19 or associated symptoms and who can initiate the appropriate next steps.
FN8- 42 U.S.C. §12111(10)