EEOC Compliance and the Covid-19 Pandemic

WORKPLACE ISSUES

EEOC Compliance and the Covid-19 Pandemic

By Barry A. Hartstein and Therese Waymel

The Equal Employment Opportunity Commission (EEOC) has established new rules and guidance to help employers navigate the Covid-19 pandemic. There are limits, however, to employers’ conduct to stem the spread of the virus, and Covid-19’s crippling economic effects also increase the risk of discrimination claims against employers.

EEOC first issued guidance on pandemic preparedness in the workplace and the Americans with Disabilities Act (ADA) in October 2009, after President Obama declared a National Emergency in response to the H1N1 influenza pandemic. However, less drastic steps were approved because the virus was not as widespread, and it was less contagious and less deadly.

On March 19, 2020, the EEOC “re-issued” the guidance after Covid-19 was declared a pandemic by the World Health Organization, and additional input was provided by the Centers for Disease Control and Prevention (CDC). This finding has resulted in the EEOC permitting employers far more leeway in developing infection control strategies without violating federal discrimination laws.

As employers have developed infection control strategies, the EEOC’s primary focus has been on the ADA, but the EEOC also cautioned against certain conduct that may run afoul of the Age Discrimination in Employment Act, Pregnancy Discrimination Act and other discrimination laws. The EEOC also has reminded employers of practical tools available to address potential workplace harassment stemming from Covid-19.

ADA COMPLIANCE

Based on the view of the EEOC at the time of this writing, it is unclear whether Covid-19 is or could be a disability under the ADA. Regardless, in relying on the findings of the CDC and other public health authorities, the EEOC has determined that the pandemic meets the “direct threat” standard under the ADA. This determination has resulted in permitting employers to develop infection control strategies without violating the ADA, which would not be permitted in the absence of a pandemic.

Aside from the Pandemic Preparedness issued in March, the EEOC provided additional guidance during a March 27, 2020, webinar coupled with Technical Assistance Questions and Answers, which were updated in early May 2020. These temporary new rules apply to day-to-day employment for both current employees and applicants, and allow employers to take actions that are normally not permitted, including:

• Asking questions to employees who report feeling ill at work or who call in sick about their symptoms to determine if they have or may have Covid-19 (e.g., fever, chills, cough, shortness of breath, sore throat, loss of smell or taste), and barring them from the workplace for refusing to answer.

• Requiring employees to stay home if they have symptoms of Covid-19.

• Measuring an employee’s body temperature and barring employees if they refuse to have their temperature taken.

• Administering a Covid-19 test — ensuring that the tests are “accurate and reliable” — to detect the presence of the virus before permitting employees to enter the workplace.

Employers are permitted to apply the same procedures to applicants after making a conditional job offer so long as those procedures are applied for all employees in the same type of job. Employers can also delay a start date for an applicant who has Covid-19 or symptoms associated with it, and even withdraw a job offer when it needs an applicant to start immediately.

The primary caveat based on the above protocols for applicants and employees is that employers are required to maintain the confidentiality of such records separate from an employee’s personnel file. The two major exceptions to confidentiality are (1) an employer may disclose the employee’s name to a public health official when it learns that the employee has Covid-19 and (2) a temporary staffing agency or contractor may notify the employer if it learns that one if its employees has Covid-19.

An employer’s obligation to make reasonable accommodations and engage in the interactive process remain in place based on EEOC guidance. In early May 2020, the agency highlighted that an employee with a medical condition that the CDC says may put him or her at “higher risk for severe illness from Covid-19” may seek accommodations to eliminate or reduce the direct threat. Per the EEOC, employers may forgo or shorten the required interactive process and even place an end date on the accommodation. The EEOC’s guidance also suggests that the threshold for “undue hardship” may be lower, taking into account the financial pressures on many employers today.

INFECTION CONTROL LIMITS

The EEOC has placed limits on infection control to the extent that an employer’s actions unfairly discriminate against a protected group. As an example, merely because the CDC has identified those 65 years of age and older as being at a higher risk of severe illness if they contract Covid 19 does not justify excluding such workers from the workplace. Similarly, despite the fact that women who are pregnant also face a higher risk for severe illness does not justify the layoff or furlough of such workers. EEOC Chair Janet Dhillon has cautioned against mistreatment or harassment of Asian Americans, which most likely stems from backlash due to the virus.

Finally, record levels of unemployment most likely will contribute to a significant spike in the number of discrimination charges for those who are left without work. Employers must take care to focus on job-related reasons when selecting employees for return to work in scaledback operations to minimize the risk of discrimination claims.

Barry A. Hartstein is a shareholder with Littler Mendelson and co-chair of the firm’s EEO & Diversity Practice Group. He has more than 40 years of experience counseling employers on EEOC matters on a local and national level. bharstein@littler.com

M. Therese Waymel is an associate with Littler. She represents companies in labor and employment litigation, including disputes involving wrongful termination, unlawful discrimination and retaliation. twaymel@littler.com