EEOC Guidance Relating to COVID-19

EEOC Guidance Relating to COVID-19

The U.S. Equal Employment Opportunity Commission (EEOC) has released guidance throughout the COVID-19 pandemic, which is premised on its conclusion that the virus is a direct threat to the health and safety of people in the workplace. Among the EEOC's current guidance are the following:

1. Can employers require employees to undergo COVID-19 virus testing? Yes, for current employees; although, for new hires, such a requirement can only be made as part of a conditional offer of employment.
2. Can employers require employees to undergo antibody testing for COVID-19 antibodies? No.
3. Can employers require employees to participate in a health screening (such as a temperature test or a health questionnaire) for COVID-19 symptoms? Yes, but only during the COVID-19 health emergency. All employees in the same type of job must be screened consistently, to avoid discrimination claims. Also, if an employee requests accommodation for the health screening because of a disability or for religious reasons, employers must treat such requests for accommodation as they would pre-pandemic.
4. Can employers require a doctor’s note certifying fitness for duty before employees return to work from quarantine? Yes.
5. Must an employer treat information relating to an employee’s COVID-19 health status confidentially? Yes. The information must be kept strictly confidential and stored separately from the employee’s personnel file. (Employers must provide California resident employees with a privacy notice explaining what information will be collected and how the information will be used, prior to collecting the information, pursuant to the CCPA.)
6. Can an employer require employees to wear protective gear such as masks and gloves? Yes, but employees may have a disability that needs reasonable accommodation or may require a religious accommodation.

The full range of the EEOC’s guidance, including whether employees age 65 or over and pregnant employees can be excluded from the workplace, can be viewed here and here.