EEOC Updates Its COVID-19 Technical Assistance

The U.S. Equal Employment Opportunity Commission (EEOC) has updated its COVID-19 technical assistance to include more information about employer retaliation in pandemic-related employment situations.

The updates explain and clarify the rights of employees and job applicants who believe they suffered retaliation for protected activities under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, or other employment discrimination laws. The technical assistance explains how these rights are balanced against employers’ needs to enforce COVID-19 health and safety protocols.

“Retaliation is the most frequently alleged form of discrimination in the EEOC’s charges overall and has been at the top for too many years,” said EEOC Chair Charlotte A. Burrows. “The COVID-19 pandemic has created new situations and additional challenges, but it is no excuse to retaliate against people for opposing employment discrimination. This updated technical assistance provides additional clarity on how our laws balance workers’ rights to speak up without fear of retaliation against employers’ responsibilities to create a healthy and safe work environment.” 

Here are some frequently asked questions and responses from the EEOC:

How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic? 

During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Does the ADA allow employers to require employees to stay home if they have symptoms of COVID-19? 

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

When employees return to work, does the ADA allow employers to require a doctor's note certifying fitness for duty? 

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? 

Yes. 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. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. The CDC has identified a current list of symptoms.

An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as the EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.

For the full list of Q&A’s and more information from the EEOC click here.