E.E.O.C.’s Expanded Guidelines on Screening, Testing and Pandemic Management

The Americans with Disabilities Act (ADA) includes an employee’s right to maintain the privacy of his or her medical information notwithstanding any ailment that might limit that person’s ability to perform essential job functions. However, the pandemic’s new “abnormal” quickly led the federal Equal Employment Opportunity Commission (EEOC) to relax those ADA confidentiality restrictions in the interest of thwarting widespread workplace disease transmission. See, Infection Protection; What an Employer Can Ask in a Pandemic (March 25, 2020).

From the past six months of fielding the public’s confusions over the agency’s initial guidelines, the EEOC has published a greatly expanded technical assistance, “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19” (September 8, 2020) (New COVID Circular).

Roughly twice the length of the preceding version, this updated circular includes key direction, including for example:

• Continuing Workforce Testing: An employer may administer COVID-19 testing to screen workers initially entering the workplace as well as to regularly monitor possible infection among the workforce. New COVID Circular, section A.6. The EEOC’s previous approval of worker testing was limited to initial workplace entry only.
• Test Choice Prerogatives: Management may use tests “considered” accurate, but should regularly check the federal government websites for new information. New COVID Circular, section A.6. The previous guideline placed the burden on the employer to ensure tests were in fact “accurate and reliable.”
• Workplace Entry Criteria: An employer may ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19. New COVID Circular, section A.8. The previous guideline was silent on the issue.
• Singling Out Employees for Screening: As long as based on objective evidence, managers may single out an employee to ask questions to determine if he or she has COVID-19 or to require his/her temperature taking or testing. New COVID Circular, section A.9. The prior guideline offered no view on this.
• Barring Uncooperative Employees from the Workplace: An employer may prohibit an employee from entering the workplace who refuses to have his/her temperature taken or to answer questions on COVID-19 infection, symptoms or testing. However, management should take care to first clarify and understand the worker’s grounds for refusal. It may be for example that the employee only needs reassurance on confidentiality of his/her health information or seeks some reasonable accommodation on how he/she is to be screened. New COVID Circular, section A.11. Again, previous guidelines did not address this scenario.
• Identifying COVID-Infected or -Suspected Employees: On report that a worker has COVID-19 or symptoms, managers can and should take proactive measures to prevent and limit the spread to co-workers, but only in a manner that protects the subject worker’s privacy to the extent possible.

Thus, the EEOC recognizes the necessity of interviewing the affected person for a list of people with whom he/she has had close workplace contact but advises against specifically identifying that COVID-affected person to those on the list. Instead, the employer should use a “generic descriptor,” e.g., “someone at this work location” has COVID-19. While it is inevitable that person’s identity will be known by some, the information should be on need-to-know only. New COVID Circular, section B.5. No prior EEOC guidance set forth advice on these matters.

Best practice should include close review of the New COVID Circular to determine any appropriate expansion in turn of an employer’s internal pandemic protocols.

See also:

• Workplace Pandemic Prevention – Model Employee Handbook and Forms Include Vital COVID-19 Protocols(September 3, 2020)
• Older Folks are People Too – Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Thinking the Unthinkable – Expanding Federal Post-Pandemic Guidelines for Safeguarding Returning Personnel(April 23, 2020)

We continue to assist employer clients on pandemic-related policies, protocols and problem solving. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

September 18, 2020

E.E.O.C.’s Expanded Guidelines on Screening, Testing and Pandemic Management