On September 8, 2020, the Equal Employment Opportunity Commission (EEOC) issued updates to its technical assistance guidance to clarify its position on common workplace issues as businesses begin to resume in-person operations. The guidance appears in question-and-answer format with updates to address workplace COVID-19 testing and inquiries; maintenance of Americans with Disabilities Act (ADA) confidentiality; requests for accommodation; furloughs and layoffs; and age discrimination in flexible work arrangements.

• Permissible workplace COVID-19 tests and inquiries. COVID-19 testing administered by employers consistent with current guidance issued by the Centers for Disease Control and Prevention (CDC), including temperature screenings, will meet the ADA’s “business necessity standard.” Employers may ask all employees who will be physically present in the workplace if they have or had COVID-19 or symptoms associated with the virus, but may not ask whether the employee has a family member who has or had COVID-19 or its symptoms. If an employee refuses to undergo a temperature screening or answer questions about whether the employee has COVID-19 or its symptoms, employers may ask about the reason for the refusal and then, if applicable, proceed as they would for any other request for an accommodation under the ADA.
  
  
• ADA confidentiality. The ADA requires that an employer keep all medical information about an employee confidential and store it separately from personnel files. The exchange or receipt of medical information during remote work does not create an exception to this requirement. Managers and supervisors who receive employees’ medical information while working remotely must continue to safeguard this information in accordance with the employer’s policies. ADA confidentiality does not prevent co-workers or managers from making necessary and required internal reports of an employee who has symptoms of COVID-19 or who has tested positive for the virus. ADA confidentiality also does not prohibit disclosure that an employee is working remotely or on leave, but the employer cannot disclose the reason for the leave.
  
  
• Requests for accommodation. Employers are not required to accommodate every employee with a remote work arrangement or permanently change essential job functions to enable a remote work arrangement merely because the employer did so when it closed its workplace and/or implemented temporary remote work arrangements to mitigate against the spread of COVID-19. Rather, employers and employees should proceed as they would for any other request for an accommodation under the ADA, i.e., engage in a flexible, cooperative interactive process.
  
  
• Furloughs and layoffs. When planning furloughs and layoffs, employers are reminded that the laws enforced by the EEOC prohibit the selection of an individual on the basis of a protected characteristic (e.g., race, color, religion, sex, age) or in retaliation for a protected activity.
  
  
• Age discrimination. Employers may not provide flexibility (e.g., telework, modified schedules) to employees if it results in older, comparable employees being treated less favorably based on age in comparison.

There may be state and local legislative developments that could impact the guidance provided by the EEOC. Employers should consult legal counsel regarding specific circumstances for individualized legal advice on COVID-19-related return-to-work issues.

If you have questions regarding the EEOC guidance, feel free to contact the author or a member of Wilson Elser’s Labor & Employment Practice.