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The Equal Employment Opportunity Commission (“EEOC”) recently updated its COVID-19 Guidance Page. The revised guidance advised that general testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard. However, in order for an employer to test only one employee, the employer should have a reasonable objective belief that he/she might have the disease.
The EEOC guidance states that an employer can ask employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease, but should not phrase that question as one asking about family members. The ADA allows an employer to bar an employee from physical presence in the workplace if he or she refuses to have a temperature taken or refuses to answer questions about whether he or she has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19.
Test and screening results must remain confidential, but an employer can notify others in the workplace that someone has COVID as long as they don’t identify the affected employee.
The EEOC also states that allowing telework now does not mean an employer must allow it when the pandemic ends. The EEOC guidance reads, “The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations.” However, the guidance also states, “The period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not [an] employee with a disability could satisfactorily perform all essential functions while working remotely.”