Hunton Employment & Labor Perspectives

EEOC guidance on COVID-19 continues to evolve as the medical community learns more about the virus.  On April 9, 2020, the EEOC expanded the list of symptoms about which employers may ask when screening employees entering the workplace, without running afoul of the Americans with Disabilities Act (ADA).  Previously, employers were permitted to ask individuals if they were experiencing fever, chills, cough, sore throat, or shortness of breath. In the agency’s most recent update to its “Technical Assistance Questions and Answers about COVID-19,” it acknowledged that the medical profession now recognizes that the virus may present with the additional symptoms of a sudden loss of smell or taste, as well as gastrointestinal problems, such as nausea, diarrhea or vomiting.  Inquiries about these symptoms are now permitted, as well.

These screening inquiries are an essential tool for employers faced with the dual challenge of ensuring continuity of critical infrastructure businesses and providing a safe workplace.  The CDC’s most recent guidance for critical sector employers permits them to allow employees exposed to COVID-19 into the workplace if they remain asymptomatic, as long as employers take precautionary measures are in place, including screening for COVID-19 symptoms.

EEOC’s updated guidance comes on the heels of its March 27, 2020 webinar, which began with a segment on permissible workplace inquiries about COVID-19. Responding to questions submitted by members of the public, EEOC legal staff clarified the following issues:

• Employees who refuse to cooperate in screening protocols, including questions about COVID symptoms and temperature-taking, may be turned away from the workplace.
• An employer may pose screening questions to a single employee – as opposed to all employees – if the employer has a reasonable belief, based on objective evidence, that the employee might have the disease. Pre-pandemic, it would not have been permissible to question an employee about a persistent cough and whether she has seen a doctor.
• To find out about potential exposure, the best information will be obtained by posing a broad question: whether employees have had contact with anyone they know to have been diagnosed with COVID-19, as opposed to asking if the employee has family members with the disease or its symptoms. While the narrower question is permissible, from a public health standpoint, the broader question accomplishes more.