There was an update for employers from the Equal Employment Opportunity Commission (EEOC) on September 8. After public feedback, the EEOC updated several answers to frequently asked questions (FAQs) about how employers should comply with the Americans with Disabilities Act (ADA) during the COVID-19 pandemic. What was updated?
FAQ A6 (COVID-19 testing) still confirms that employers may take screening steps of employees for active virus (still a direct threat). Testing may be done upon return to work, or periodically. Federal disability law does not interfere with an employer following the CDC recommendations, and staying up with CDC updates and revisions. All COVID-19 related testing must be accurate and reliable. Even with testing, employers are still required to follow other infection control practices – handwashing, social distancing, face coverings etc….
FAQ A8 (COVID-19 screening questions) confirms that employers may still ask all employees who are entering the physical workplace if they have COVID-19, have been tested for COVID-19 or have symptoms of COVID-19. Employees that are teleworking, and not physically in the workplace, would not be asked these questions because there is no direct threat to others. FAQ A12 (Refusal to answer COVID-19 questions) states an employer may bar an employee from physical presence in the workplace if he/she refuses to have their temperature taken or refuses to answer reasonable questions.
FAQ A9 (Questioning employees by a manager) is a new FAQ. Can a manager ask a single employee about COVID-19, or do all employees need to be treated exactly the same? The ADA mandates that if an employer wishes to ask only a particular employee to answer such questions or to have her temperature taken or undergo other screening or testing, the employer must have a reasonable belief based on objective evidence that this person might have the disease. So, if an employee shares information about possible symptoms, shows symptoms, or discusses close contact with a COVID-19 positive person, this would permit an individualized approach to the employee. New FAQ A13, allows a manager to ask an absent employee about why they were absent and FAQ A14 allows an employer to inquire about employee travel before an employee develops COVID-19 symptoms.
FAQ A10 (Asking about family members with COVID-19). The EEOC states that the Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.
There are several new FAQs relating to how employers (and managers) must handle employees’ medical information. FAQ B5 states that ADA confidentiality is not violated when a manager reports employee COVID-19 information to appropriate company officials (but must make every effort to limit the people informed). The company shall use generic descriptors when contact tracing like “a person in this location” or “someone on the 4th floor” – not the employee’s name. Employers are not allowed to confirm identity, even in small workplaces where employees probably can figure it out.
A co-worker is allowed to disclose known COVID-19 symptoms of another employee to a manager. FAQ B6. If an employee is teleworking because of COVID-19, the employer may inform co-workers about the teleworking arrangement, but cannot disclose the reason for the teleworking arrangement. FAQ B7
