HREM Summary of EEOC’s Updated Pandemic Guidance and COVID-19

Bryan M. Douglas

The Coronavirus Disease 2019 – also called COVID-19 – pandemic has taken on new and profound dimensions in the United States and North Carolina. While Northeastern North Carolina currently has only one confirmed case in Pasquotank County, community spread of COVID-19 has occurred in North Carolina. According to the CDC, community spread means people have been infected with the virus in an area, including some who are not sure how or where they became infected.

The legal liabilities and considerations related to the workplace and COVID-19 are evolving along with the situation in our country. Just as late as last week, the U.S. Equal Employment Opportunity Commission (EEOC) updated its 2009 Pandemic Preparedness in the Workplace and the Americans with Disabilities Act [(ADA)].

The EEOC is focused on enforcing federal employment discrimination laws, why should employers care what the EEOC says about the COVID-19 pandemic?

Put simply, the EEOC has determined that the COVID-19 pandemic currently meets the permissible legal threshold to take certain actions with employees that would otherwise be violations of the ADA when there is no pandemic.

If the CDC and state and local public health authorities update the assessment of the spread and severity of COVID-19, however, the permissible legal threshold – the direct threat – could no longer exist. This underscores the importance of monitoring these agencies and other governmental orders and press reports. Earlier this month we provided a quick list of websites that may help our community monitor government websites for important updates on COVID-19.

Since the EEOC determined that the COVID-19 pandemic currently meets the “direct threat standard,” what may an ADA-covered employer do?

  • Send employees home involuntarily if they display symptoms of COVID-19. According to the CDC, the symptoms of COVID-19 are fever, cough, shortness of breath. Please note that even before the EEOC issued its update last week, an employee with COVID-19 could be sent home involuntarily.
  • Ask employees who report feeling ill at work, or who call-in sick, questions about their symptoms to determine if they have or may have COVID-19.
  • Measure employees’ body temperature. The CDC’s Implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission, however, currently suggests that “employers should consider regular temperature screening . . . of staff and visitors entering buildings (if feasible).” Thus, more objective information would likely be required to conduct a body temperature check of an individual employee or on a case-by-case basis.
  • Ask whether employees are returning from locations that the CDC and state and local public health authorities recommend that people who visit remain at home for several days until it is clear that they do not have COVID-19 or its symptoms. This includes personal travel. Employers do not have to wait until the employee develops COVID-19 symptoms.
  • Ask employees to provide information needed to permit their return to the workplace after visiting locations specified by the CDC and state and local public health authorities. This includes personal travel. Employers do not have to wait until the employee develops COVID-19 symptoms.
  • Screen job applicants for symptoms of COVID-19 after making a conditional job offer and all entering employees in the same type of job are also screened.
  • Take an applicant’s body temperature after making a conditional job offer and all entering employees in the same job type are also subjected to the body temperature check.
  • Delay the start date of an applicant who has COVID-19 or its associated symptoms.
  • Withdraw a job offer to an applicant when the applicant is needed to start immediately but the individual has COVID-19 or symptoms of it. Based on current CDC guidance, such an individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

As with all personnel actions, each of the above actions must be made without regard to any protected characteristic (for example, race, color, sex, disability, age, etc.). Additionally, all employee medical information, like the fact that an employee had a fever or other symptoms, is subject to the ADA’s confidentiality requirements.

Even though the COVID-19 pandemic is currently deemed by the EEOC as meeting the “direct threat standard,” an ADA-covered employer cannot:

  • Ask employees who do not have COVID-19 symptoms to disclose whether they have a medical condition that the CDC says could make them vulnerable to COVID-19.
  • Require employees to take a vaccine. Even so, there is currently no vaccine for COVID-19.
  • Screen job applicants for symptoms of COVID-19 who have not been given a conditional job offer.

This post is based on the current medical assessment of the COVID-19 pandemic by the CDC and North Carolina public health authorities, and current EEOC guidance. The medical assessments and guidance may change, resulting in different conclusions that would require reconsideration of action to take with employees – particularly if COVID-19 is no longer designated a pandemic or meets the “direct threat standard” as defined by the ADA.

COVID-19 has provoked a number of difficult and unprecedented legal challenges for employers and their workforce. Hornthal, Riley, Ellis & Maland L.L.P. and our labor and employment team is ready to evaluate your situation, and advise and assist you in protecting your business and workforce during this unique and challenging time. Given the evolving nature of the situation, we encourage you to contact a member of our team with questions about a specific situation.  Our offices are continuing to remain open on our usual schedule, Monday through Friday from 8:30 a.m.-5:00 p.m.