EEOC Updates Guidance on COVID-19
California Employers Association - October 29, 2020

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The Equal Employment Opportunity Commission (EEOC) updated its guidance last month regarding COVID-19 employer obligations. Highlights include:

Medical Inquiries

Can I ask employees if they have COVID-19 Symptoms?

Yes. In addition to daily temperature screens, employers may ask all employees who are entering the workplace if they have COVID-19 or symptoms, and whether they have been tested for it.

However, if you single out any employee for questioning or a temperature screen, you may only do so if you have a “reasonable belief based on objective evidence” that the employee might have COVID-19. For example, if you overheard the employee discussing that they or a member of their household has COVID-19, or observed the employee showing symptoms, such as coughing. Unless you have a specific, objective reason to question a particular employee, you should treat all employees equally.

Can I ask employees about their family and COVID-19?

No! The EEOC clarified that requesting medical information about employees’ family members, including COVID-19, is off-limits. However, employers may ask employees whether they have had contact with anyone diagnosed with COVID-19, or who may have symptoms associated with the disease.

What if an employee refuses to take a temperature screen?

If an employee refuses to take a temperature screen or answer questions about whether they have COVID-19 or associated symptoms, employers are permitted to bar the employee from physical presence in the workplace. However, if an employee requests a reasonable accommodation with respect to screening, the employer should follow the usual accommodation process.

Under California law, employees have extensive privacy rights in their medical information. California employers should establish procedures to protect the unauthorized use and disclosure of medical information. Keep employees’ medical information, including COVID-19 temperature screens, in a separate file from the personnel file. It should only be accessible to employees with a need to know, such as HR or benefits personnel.

Employer Travel Policies

Can I ask an employee where they have traveled?

Yes. As more travel options become available, employers may wonder how to address employees returning to work after travel. According to the EEOC, employers are permitted to ask questions about where an employee has traveled.

If the CDC, state, or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask or require employees to report when they visit these locations, even if the travel was personal. Again, if you do implement a travel policy, be sure to apply it consistently amongst employees.

What if an employee doesn’t come into work after traveling?

Employers may ask why an individual did not report to work. California employers should keep in mind that when employees choose to take California paid sick leave, you are not allowed to require medical certification.

Teleworking as a Reasonable Accommodation

If I allowed employees to telework for a while, do I have to allow them to do it forever?

No! If you permitted employees to telework because of COVID-19 this does not mean that you must automatically grant a request to telework after the workplace reopens.

If an employer temporarily excuses the performance of one or more essential functions when allowing employees to telework it does not mean that the employer permanently changed a job’s essential functions. Nor does it mean that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations.

Additional Resources from CEA!

Do you need assistance navigating a request for an accommodation? CEA’s Reasonable Accommodation Checklist is available for employers.

If you need help getting employees back to work, refer to CEA’s Return to Work – COVID-19 Tool Kit. A sample Reinstatement Notice is available also available.

And, as new workplace issues arise, do not hesitate to reach out to your HR advisors with questions, at 800.399.5331.

CLICK HERE to view this article on CEA’s website.