Pub. 5 Issue 4

17 L ast week the U.S. Equal Employment Opportunity Commission (EEOC) issued further guidance to employers on what can be asked of employees during the pandemic. Caught between trying to make the worksite a safe place while not making inquiries that might violate the law, employers have to tread carefully. The EEOC has clarified that employers can go further during the pandemic to protect the health and safety of their employees. Below is an excerpt from recent guidance offered by the EEOC to help employers continue to navigate the balance between employee safety and privacy. A.8. May employers ask all employees physi - cally entering the workplace if they have been diagnosed with or tested for COVID-19? Yes. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those em- ployees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions. A .9. May a manager ask only one employee — as opposed to asking all employees —questions designed to determine if they have COVID-19, or require that this employee alone have their temperature taken or undergo other screening or testing? If an employer wishes to ask only a particular employee to answer such questions or to have her temperature taken or undergo other screening or testing, the ADA requires the em- ployer to have a reasonable belief based on objective evidence that this person might have the disease. So, the employer needs to consider why it wishes to take these actions regarding this particular employee, such as displaying COVID-19 symptoms. In addition, the ADA does not interfere with employers following recommendations by the CDC or other public health authorities EEOC Clarifies What Employers Can (and Can’t) Ask Employees During the Pandemic By Colleen M. McCarthy, Ferruzo & Ferruzo