Friday, April 24, 2020

EEOC Technical Guidance on COVID-19

An employer’s response to COVID-19 raises tricky questions at the intersection of federal discrimination law, worker safety laws, and tort law. The EEOC has published updated technical guidance related to COVID-19.  The technical guidance covers medical exams and inquiries, confidentiality of records, request for accommodation, harassment and other issues.

Under the guidance related to medical exams and inquiries, employers may ask workers if they are experiencing any of the symptoms related to the virus.  Employers may also take the temperature of employees to determine if they might have been infected with the virus.  Information related to those inquiries is a confidential medical record. The EEOC also cautions that people who contract the virus may not have a fever and may be asymptomatic.

Employers may require a worker who has contracted the virus to refrain from coming to work and to obtain a medical clearance to return to work.  However, the EEOC notes that employers should be flexible about the kinds of documents they require, given how busy medical providers are in certain areas.

Employers may also administer tests to determine if an employee has contracted the virus. The EEOC technical guidance states that a worker who contracts the virus can be a direct threat in the workplace and that employers may determine if the worker might be contagious.  The EEOC cautions that current tests may result in both false negatives and false positives.  It also notes that a person who tests negative for the virus may contract it later.

The new technical guidance is available here:

- Sandra Sperino

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