EEOC Updates Answers to Questions about Covid-19 and the ADA

Earlier this month, the EEOC issued updated guidance titled: “What you should know about Covid-19 and the ADA, the Rehabilitation Act and other EEO Laws.” The guidance updates the EEOC’s position on Covid-19 related inquiries, medical exams and accommodation. Highlights include:

Testing: An employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.

Questions about Covid-19: 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.

Questions about Family: Employers are prohibited by the Genetic Information Nondiscrimination Act (GINA) from asking employees medical questions about family members. However, GINA does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.

Questions about Absences: Employers are always entitled to know why an employee did not report for work. Asking why an individual did not report to work is not a disability-related inquiry.

Barring Non-Compliant Employees: Under the circumstances existing currently, the ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19.

Disclosing Positive Covid-19 Cases: An employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19. And, a temporary staffing agency or a contractor that places an employee in an employer’s workplace may notify the employer if it learns the employee has COVID-19.

Vulnerable Family Members: Employees are not entitled to accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

The updated guidance is here (new info is dated as of 9/8): https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

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