The U.S. Equal Employment Opportunity Commission (EEOC) has updated its guidance document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws”, last updated on March 18, 2020.  This was the subject of one of our previous alerts:

Some of what the EEOC clarifies was already known or generally accepted, such as an employer being allowed to disclose the name of an employee to a public health agency upon learning that the employee has COVID-19, and allowing contractors and temporary staffing agencies to notify an employer when an employee they have placed in the workplace has COVID-19.

The EEOC also cautions that an employer cannot postpone a start date or withdraw a job offer because an individual is pregnant or is 65 years old and thus is at higher risk from COVID-19.  The employer can choose to allow telework or to discuss with the person if they would like to postpone the start date.

Here are other highlights of the updated EEOC guidance:

• As more is learned about COVID-19 and the list of associated symptoms is expanded, employers may ask employees about such symptoms.  Besides fever or cough, additional symptoms may include, for example, new loss of smell or taste and gastrointestinal problems, such as nausea, diarrhea, and vomiting.
• An employer may store an employee’s COVID-19 medical information in the employee’s existing medical file (separately from the employee’s personnel file, per ADA requirements).
• If an employer requires that all employees have their temperatures taken each day before entering the workplace, it may keep a log of the results, but the information must be kept confidential.
• The EEOC discusses reasonable accommodations that employers may make for employees with disabilities who have jobs that must be performed at the workplace, absent undue hardship.  Depending on the circumstances, these could include such things as one-way aisles, encouraging minimum distancing by creating barriers with plexiglass, tables, or other materials, temporary job restructuring, temporary transfers to a different position, or modifying work schedules.
• Employees with pre-existing mental illnesses or disorders that have been exacerbated by the coronavirus pandemic may be entitled to reasonable accommodation, absent undue hardship.  The EEOC points out that employers may handle these like any accommodation request.  But, an employee who was already receiving a reasonable accommodation may be entitled to an additional or altered accommodation, absent undue hardship.
• The EEOC also offers recommendations to employers for reducing and addressing workplace harassment that may arise out of the pandemic, such as communicating to employees that fear of COVID-19 should not be misdirected against persons because of a protected characteristic like national origin or race.