Navigating EEOC Compliance During COVID-19

By Michael Klazema on 11/12/2020

To say that the COVID-19 pandemic turned the business world upside-down is an understatement. From a massive shift to remote work to hard choices surrounding safety and returning to the office, employers have many new concerns to contend with this year. Among them is the need to implement new policies related to COVID without running afoul of laws such as the Americans with Disabilities Act. 

To help guide employers, the EEOC has released several directives providing insight and ground rules for deploying effective COVID protocols in a non-discriminatory manner. Consider our quick breakdown of the latest EEOC guidance to maintain policies compliant with labor laws. 

Can Employers Legally Test Their Workers for COVID-19?

With many businesses reopening their offices, the question of how to reduce the risk of transmission between employees remains at the forefront for employers.  

Employers must know whether they may require employees to disclose personal medical information or undergo testing for COVID-19. Although such questions would be unusual in normal times, the EEOC has laid out guidance based on exceptional circumstances. 

Employers may broadly ask workers whether they currently have or have recently had COVID-19 symptoms, exposure to someone with the virus, or a recent test. They may not, however, ask directly about a worker’s family’s status.  

As an employer, keep inquiries broad. While businesses can implement blanket COVID-19 testing of all employees and re-test periodically, the EEOC says that it would not be legal to exclude employees based on the results of antibody tests alone. Be careful to avoid singling out employees for COVID-related questions or testing without a clear reason to do so.

Employee Medical Confidentiality and COVID-19

When potential COVID-19 exposure occurs in the workplace, employers face a complex balancing act. They must do everything reasonable to maintain an employee’s medical confidentiality and privacy while notifying those with potential exposure.  

According to the EEOC, businesses should strive to limit the number of people who know the identity of employees with COVID-19. You may tell employees who worked in proximity with the sick individual, but you may not disclose or confirm the individual’s identity. Restrict information to the managerial chain as much as possible and continue to keep separate, confidential records of medical issues.

Could Employers Mandate Vaccines?

With human trials underway, a COVID-19 vaccine may become available in 2021. Could a business institute a mandate that workers must receive a vaccine to work?  

Although there is no current guidance from the EEOC on this matter, it has used a doctrine of “significant risk” in developing other COVID-19-related policies. It is likely that employers will receive permission to require vaccination if they make reasonable accommodations and exceptions.

Employers Must Exercise Caution 

Many people are unaware of the impact of the pandemic on employment law. With alarming case numbers and many employees now returning to work, companies must continue to monitor the situation and develop policies that are safe and fair.  

With additional guidance likely in the future, all employers should monitor EEOC bulletins for updates and changes.

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