EEOC issues updated guidance on coronavirus and bias laws

It is okay for employers to keep a log of employees’ temperatures, although they must still maintain their confidentiality, says the U.S. Equal Employment Opportunity Commission, in an update of guidance on how employers can deal with the coronavirus without running afoul of anti-discrimination laws.

But they are not permitted to postpone a start date or withdraw a job offer because an individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19, says the updated guidance. It is permissible, though, to allow telework or to discuss with these individuals if they would like to postpone their start day.

The EEOC first issued guidance in March on dealing with the virus, which was based on guidance it had issued in 2009 in response to the H1N1 outbreak.

Other updated advice offered to employers include:

-Employers can disclose employee’s names to a public health agency when it learns workers have COVID-19.

-A temporary staffing agency or a contractor that places an employee in an employer’s workplace can provide the employer with the worker’s name if the employer learns the employee has COVID-19. This is because the employer may need to determine if the employee had contact with anyone in the workplace.

-An employer may store all medical information related to COVID-19 in existing medical files, as opposed to having to create a new medical file system solely for this information. This information includes an employee’s statement that he has, or suspects he has, the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

-Employer should rely on the CDC, other public health authorities and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether the workers would pose a direct threat to health in the workplace.

It said additional symptoms beyond fever or cough include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea and vomiting.

-There may be reasonable accommodations for individuals with disabilities, absent undue hardship to the employer, that could offer protection to an employee who, because of a preexisting disability, is at higher risk from COVID-19.

-If an employee has a pre-existing condition, such as an anxiety disorder, that has been exacerbated by the pandemic, employers can ask questions to determine whether the condition is a disability and discuss accommodations.

-Employers do not necessarily have to postpone requests for an employee with a disability for an accommodation that will not be needed until he returns to the workplace, when mandatory telework ends.

-Employees who already receive a reasonable accommodation before the pandemic may be entitled to an additional or altered accommodation, absent undue hardship.

-Employers should explicitly communicate to their workers that fear of the pandemic should not be misdirected to individuals with a protected characteristic including national origin or race.

-Special rules apply when an employer offers employees severance packages in exchange for a general release of all discrimination claims against the employer.

More insurance and risk management news on the coronavirus crisis here.