Returning to Work Without Running Afoul of the EEOC -- Part One

Now that workplaces will be opening back up – hopefully – you may have questions on what you can require from your employees when they return.  On Friday, the EEOC again amended its guidance on COVID-19 with helpful information on this topic.  Here are some of their key questions and answers, with our commentary in bold.  Due to the length of this email, we have split this into two parts.  Here is part one:

1. When employees return to work, does the Americans with Disabilities Act (ADA) allow employers to require a doctor's note certifying fitness for duty?  Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus. You have flexibility on this issue; just be consistent with your RTW requirements.
2. If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results?  Yes. The employer needs to maintain the confidentiality of this information. You will also need to keep this information separate from your other personnel files and take steps to protect it from being leaked.
3. May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19? Yes. You can also disclose it to your customer if you are working on your customer’s premises and vice versa.
4. May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19?  No.  The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer.  However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.  The same presumably holds true with current employees.  While you can ask if they would like to continue to telework, if they want to return, you should allow them to do so.

Stay safe and keep the course.  And please let us know if we can help.

Thanks, Jack, Elizabeth and Jim