EEOC Updates COVID-19 Guidance: What You Need to Know

Demonstrating the fluidity of the situation presented by the pandemic, the agency has now updated this guidance about 20 times since its initial release.

Let us dive in and take a look at some notable points in this most recent — and perhaps final — iteration of the agency's COVID-19 guidance.

Medical inquiries and exams

Here are some key points about medical exams and inquiries that are part of the most recent update, which was made on May 15:

• If an employee calls in sick, an employer can ask whether they have COVID-19 or symptoms related to it. If the answer is yes, then the employer can follow CDC recommendations regarding isolation.
• The best source of current information on symptoms associated with COVID-19 is the CDC, the guidance advises. Those symptoms may change as new variants emerge and the healthcare community continues to learn more about the disease.
• Taking an employee's temperature is a medical examination, the updated guidance says, which means that it is permissible only when justified by business necessity. This generally means the employer reasonably believes the employee has a medical condition that will impair their ability to perform essential job functions, or that the employee has a medical condition that poses a direct threat. The lesson here: Do not routinely take the temperature of employees.
• In determining whether to require an employee with COVID-19 or its symptoms to stay home, the guidance again says to look to – you guessed it – the CDC to decide whether to tell employees to stay home, and for how long.
• Employers can ask all employees who physically enter the workplace if they have been diagnosed with or tested for COVID-19, the updated guidance says. But employers cross a legal line, it adds, if they ask whether employees who come in to work if they have family members with the disease or its symptoms.
• If employees choose not to cooperate (e.g., "I am not going to tell you whether I have COVID-19"), the guidance gives employers the green light to "take whatever action [they deem] appropriate."
• Employers can ask employees returning from travel questions about where they have been. These are not disability-related questions, the guidance explains.

Reasonable accommodation

As to disability-related reasonable accommodation, the guidance offers this new information:

• It is probably a good idea to discuss an accommodation that may be needed upon physical return to the workplace while an employee is teleworking due to COVID-19 and before the return to work.
• If there is an urgency related to the provision of accommodation, employers can provide a temporary accommodation that is implemented after a truncated interactive process between employer and employee.
• Employers can invite employees to ask for reasonable accommodations they might need in advance of a return to the workplace.
• Employers can consider circumstances related specifically to the pandemic (like dealing with delivery delays and trying to hire temporary workers) when determining whether a requested accommodation poses significant difficulty.
• Employers cannot stop providing pandemic-related job accommodations just because the COVID-19 public health emergency ended on May 11.
• Possible job accommodations for Long COVID include a quiet workspace, uninterrupted work time and alternative lighting arrangements.

COVID-19 guidance: Other noteworthy points

Here are some other noteworthy nuggets from the guidance:

• Employers can store medical information relating specifically to COVID-19 in existing medical files.
• Employers can screen job applicants for symptoms of COVID-19 after they make a conditional job offer.
• Employers should take steps to address possible harassment of employees related to the pandemic, such as harassment of an employee for disability-related need to wear a mask at work.

To see the full updated COVID-19 guidance from the EEOC, click here.