EEOC and CDC Give Clearer Answers on How Employers Can Manage the COVID-19 Pandemic

Employers have clearer answers to questions about managing the workplace and hiring during the COVID-19 pandemic thanks to a set of new federal guidelines.

The Equal Employment Opportunity Commission (EEOC) updated its Pandemic Preparedness in the Workplace guidance to address how employers can follow advice from the Centers for Disease Control and Prevention (CDC) and state/local health authorities while also staying compliant with the Americans with Disabilities Act (ADA). The EEOC specifically updated the following guidelines:

• Based on guidance of the CDC and public health authorities as of March 20, the pandemic meets the direct threat standard because someone with COVID-19, or symptoms of it, present in the workplace poses a significant risk to other employees.
• An employer can send an employee home if the employee has COVID-19 or symptoms associated with it.
• An employer may ask employees who feel ill at work or who call in sick about their symptoms to determine if they have COVID-19.
• Employers may measure employees’ body temperature. Medical information, including fever or other symptoms, is subject to ADA confidentiality requirements.
• Employers may follow the advice of CDC and state/local public health authorities on whether to permit an employee’s return to the workplace after traveling to specified locations, whether for business or personal reasons.
• The EEOC recognized that unexpected and increased requests for reasonable accommodation may result in a delay in responding to these requests. The EEOC encourages employers to use interim solutions to allow employees to keep working as much as possible.

The EEOC also included the following guidance for hiring during the COVID-19 pandemic:

• An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same job type.
• An employer may make post-offer medical inquiries and require post-offer medical examinations, regardless of whether the applicant has a disability.
• Employers may delay the start date for an applicant with COVID-19 or symptoms associated with it. Employers should follow the most recent information from CDC and state/local health authorities in making this determination.
• An employer may withdraw a job offer if the applicant has COVID-19 or symptoms of it when the employer needs the applicant to start immediately.

The CDC’s updates to its Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) included (1) updated cleaning and disinfection guidance, (2) updated best practices for conducting social distancing and (3) updated strategies and recommendations that can be implemented now to respond to COVID-19.