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EEOC Guidance Updated This Week 9/11/20

09/11/2020

I wanted to alert you to an update this week from the EEOC.  As you’re aware, the rules and guidelines with everything surrounding COVID continues to evolve. 

 **It is the employers responsibility to check the CDC and other public health sites (e.g., OSHA, NCDHHS) periodically for any updates to guidelines, and of course, follow the most current guidelines.

 **Make sure you have thoughtful justification before you start singling out an employee and asking only one or two if he/she has symptoms.  Under ADA, the employer should have a “reasonable belief based on objective evidence” that the employee could be sick with COVID.  So, if you observe an employee with a dry cough for days, you could have concern based on the CDC symptoms. 

 **As you know, it has been deemed acceptable for employers to test employees for COVID prior to entering the workplace.  The EEOC site reminds us that the ADA does not over rule in this case due to the “direct threat” to the rest of your employees posed by a positive COVID person.  However!  You are also reminded to investigate the rates of false-positives and false-negatives linked to the particular test you choose to use.  And as we know, a negative test one day doesn’t rule out exposure as it could take until day 9 or 11 for one to test positive—this is my understanding.  And…the EEOC includes the following on this page, “A negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require–to the greatest extent possible–that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.”

**Due to GINA, the Genetic Information Nondiscrimination Act, employers may NOT ask employees if a family member has had or is sick with COVID.  This law makes it illegal for employers to delve into the medical history of family members at any level, including COVID.  If you are asking that question on your questionnaire, you might change it to “anyone”  (i.e., “have you been around anyone who has exhibited COVID symptoms or tested positive for COVID in the last fourteen days?).

 **Finally, as it relates to employers who allowed employees to telework and have now, or are thinking about or recalling employees back to one location.  You may have permitted certain essential functions (duties/responsibilities) of an employees position to be placed on hold, or not performed as indicated in the job description.  The Pandemic created an unusual time.  However, now the expectation is that your staff are returning to the office to perform the entirety of their essential functions, which are why the position exists!  Therefore, to allow an employee to continue  to  telework and only complete a portion of his/her job just because it was allowed due to the COVID shutdown is not acceptable.  Caution:  Keep in mind that in some situations of a disability, through the ADA dialogue with the employee; it may be decided that continued telework for a time is a reasonable accommodation.

 So, these were some highlights of the update from the EEOC this week that I thought were very applicable to my Clients and to those businesses with whom I stay in contact. 

 I appreciate my Client, Iconix Metal Works, with whom I spent some time this week training their Leadership Team on a number of HR Related Laws and how to conduct Legal Interviews! 

 

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