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EEOC Updates How Employers Should Address Workforce Issues Once Stay-At-Home Orders Are Lifted

April 17, 2020

As governments start planning to lift stay-at-home orders and other restrictions, employers received some answers on how to reopen their businesses.

On April 17, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance on issues arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic. The update includes questions on future return-to-work situations. For example, the update notes that under the Americans with Disabilities Act (ADA), employers can make “disability-related inquiries and conduct medical exams if they are job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.”

Direct threat is based on guidance from the Centers for Disease Control and Prevention (CDC) or other public health authorities. Therefore, employers will be acting consistent with the ADA if any screening measures are consistent with advice from the CDC and public health authorities for that type of workplace at that time. This may include taking temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return by certain types of critical workers.

The new publication continues to advise employers to avoid discrimination on protected classes in decisions related to screening and exclusion.

Please contact Mark Fijman or Phelps’ Labor and Employment team if you have any questions or need compliance advice and guidance. For more information related to COVID-19, please also see Phelps’ COVID-19: Client Resource Portal.

UPDATE

The U.S. Equal Employment Opportunity Commission (EEOC) has posted an updated and expanded technical assistance publication addressing employment questions arising under federal law related to the COVID-19 pandemic, including information addressing return-to-work and avoiding discrimination claims related to the COVID-19 outbreak.