COVID-19 and EEOC Issues

Nardone HR & Management Consulting (“Nardone Consultants”) realizes that the Coronavirus (“COVID-19”) has created new human resource and employment issues. To address some of these issues, the Equal Employment Opportunity Commission (“EEOC”) released the Pandemic Preparedness in the Workplace and the Americans With Disabilities Act to provide guidance on questions raised related to COVID­-19 and federal anti-discrimination laws. This guidance specifically addresses: (i) what an employer can legally do to protect its workforce and (ii) what questions can be asked, or screening can be conducted, related to COVID-19, in the hiring and on-boarding processes.

Responses to EEOC Issues During the Pandemic

EEOC’s guidance provides answers to common pandemic-related questions regarding what steps you may take: (i) to protect your existing workforce and (ii) when hiring new employees. Below is important information, from these guidelines, that every employer needs to know:

Steps You May Take to Protect Your Workforce

1. When employees call in sick, employers may request information about any COVID-19 symptoms employees are experiencing. (Please remember that employers must maintain all information about any employee’s illness/medical condition as a confidential medical record in a file separate from the employee’s personnel file.)
2. Employers may take the body temperature of its employees. But, employers should be aware that some people with COVID-19 do not have a fever.
3. If employees have symptoms of COVID-19, employers may require them to stay home . The Centers for Disease Control (“CDC”) recommends that employees who have become ill with symptoms of COVID-19 should leave the workplace.
4. Employers may require doctor notes to certify an employees’ fitness for duty. However, health care professionals may be too busy during and immediately after this pandemic to provide fitness-for-duty documentation. Employers may decide to rely on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus and is fit to return to work.

Steps You May Take Regarding Potential New Employees

1. Employers may screen applicants for symptoms of COVID-19, after making a conditional job offer, as long as it does so for all entering applicants in the same type of job. This applies whether or not the applicant has a disability.
2. Employers may take an applicant’s temperature as part of a post-offer, pre-employment medical exam after the employer has made a conditional offer of employment. Employers should still be aware that some people with COVID-19 do not have a fever.
3. Employers may delay the start date of an applicant who has been confirmed to have COVID-19 or is exhibiting symptoms associated with the virus. According to current CDC guidance, an individual who has COVID-19, or is experiencing its symptoms, should not be in the workplace.
4. If an employer needs an applicant to start immediately, the employer may withdraw a job offer if the applicant has a confirmed case of COVID-19 or is exhibiting symptoms. Current CDC guidelines state individuals who test positive for COVID-19 or are displaying symptoms cannot safely enter the workplace. And for this reason, the employer may withdraw the job offer.

Takeaway

The EEOC and the Ohio Civil Rights Commission are responsible for enforcing anti-discrimination laws such as the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and other EEO laws. These laws are still enforced during the pandemic but are not intended to interfere with or prevent employers from following guidelines and suggestions made by the CDC or state/local public health authorities. In fact, it is vital for employers to keep up with and follow the ever changing recommendations, issued by CDC and state/local public health authorities, to protect the health and safety of their employees, their clients/customers, and other third parties. Additionally, employers must take steps to ensure they safeguard their business’ health by complying with anti-discrimination laws and following corresponding EEOC guidance as new human resource and employment issues come up related to the pandemic. For more information about the pandemic and its impact on your business, see our previous articles The Coronavirus (COVID-19) and What Employers Need to Know and Families First COVID-19 Response Act, DOL Release, and Required Workplace Poster. Stay tuned…Nardone Consultants will continue to provide updates and other new information on how you can: (i) comply with anti-discrimination and anti-harassment laws and (ii) ensure an overall atmosphere of respect in the workplace.

Contact Nardone Consultants

Nardone HR & Management Consulting (“Nardone Consultants”) advises and represents employers in human resource (“HR”), management, and employment law matters. Tanya Nardone is working diligently to stay up to date on the latest COVID-19 information for her clients. While new information comes out related to the pandemic, Tanya will be answering client’s questions and providing aid to those in need. Nardone Consultants knows it is critical to minimize disruptions in the workplace, especially in these trying times. Nardone Consultants’ goal is to tailor its services to meet each client’s needs from representing clients against discrimination or harassment charges filed with EEOC or OCRC or providing guidance to pandemic-specific issues that arise while federal and state agencies implement new public health requirements on businesses. For further information or advice on how to best handle your business’ situation, contact Nardone Consultants.

This article provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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