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04.29.2020 | Legal Advisory

The Equal Employment Opportunity Commission (EEOC) recently provided “Return to Work” guidance for employers. In the days since, the EEOC has continued to update the Guidance. In one of the more significant developments, the EEOC is now allowing employers to conduct coronavirus testing before allowing employees into the workplace. This advisory focuses on coronavirus testing considerations for employers and addresses other important “return to work” considerations highlighted in the EEOC’s Guidance.

Coronavirus Testing

In recent weeks, employers have been assessing approaches that might be followed in returning employees to the workplace, including whether employers can test employees for coronavirus. The EEOC’s Guidance states that employers currently can take the following measures before allowing employees to return to work:

• Coronavirus testing
• Temperature testing
• Questioning employees about symptoms
• Requiring self-reporting
• Requiring infected employees to provide a doctor’s note establishing fitness of return to work

Employers that are considering the use of coronavirus testing should be cognizant of the following:

1. As it relates to coronavirus testing, employers must ensure that the tests are “accurate and reliable” to comply with the ADA. Before choosing a coronavirus testing method, employers should review guidance from the U.S. Food and Drug Administration (FDA), Center for Disease Control and Prevention (CDC), and other public health authorities.
2. Employers must keep all testing results confidential. Employers may only disclose the name of an infected employee to public health agencies.
3. Employers must conduct testing and inquiries uniformly to avoid discrimination on the basis of age, national origin, race, or other protected characteristics.

Other “Return to Work” Considerations

Although the guidance on coronavirus testing may be the most significant development in the EEOC’s Guidance, other considerations for employers that are returning employees to work merit note, including personal protective equipment (PPE), disability accommodation, and anti-discrimination efforts.

Personal Protective Equipment (PPE)

The EEOC’s Guidance clarifies that upon returning to work, employers may require employees to wear PPE, such as gloves and masks, and observe infection control measures, such as social distancing and hand washing.

The Guidance also states that if an employee requires a PPE modification—such as non-latex gloves or a mask that accommodates religious garb— then “the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII.”

Disability Accommodation

Employees with preexisting disabilities may be more susceptible to COVID-19 and thus require previously unneeded accommodations. To prepare for the return of employees to the workplace, employers may now begin asking employees if they will need reasonable accommodations upon return. The EEOC’s Guidance suggests the following accommodations for employees with preexisting health conditions who may require reduced contact with others:

• Designating one-way aisles
• Using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers
• Temporary job restructuring of marginal job duties
• Temporary transfers to a different position
• Modifying work schedules or shift assignments

Anti-Discrimination Efforts

The EEOC’s Guidance also addresses anti-discrimination efforts. The EEOC Guidance makes clear that blanket “return to work” discrimination is prohibited—for example, postponing start dates for those who may be more susceptible to the virus, like those aged 65 or older, or pregnant women. Still, employers may allow more susceptible employees to telework and may also discuss—but not require—start date postponement with these employees.

The EEOC Guidance also suggests that employers remind their employees that it is against federal Equal Employment Opportunity laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information.

 Key Takeaways

The EEOC’s Guidance provides helpful employment tips for the return of employees to work, including the allowance of coronavirus testing. While coronavirus testing may be utilized by employers, employers must exercise caution, ensuring that: (1) the coronavirus testing method is both accurate and reliable, (2) the test results are kept confidential, and (3) testing is conducted uniformly to avoid discrimination. Before returning to work, employers also should consider supplying employees with PPE, accommodating employee disabilities exacerbated by the pandemic, and reminding employees of anti-discrimination efforts.

This advisory was prepared by Liam O’Connell in Nutter’s Labor, Employment and Benefits practice group. For more information, please contact Liam or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.