NEW MEXICO’S BUSINESS LAWYERS ®

EEOC Updates COVID-19 Guidance

April 20, 2020

On April 17, the EEOC issued updated technical assistance and questions and answers regarding disability-related inquiries, confidentiality of medical information, Americans with Disabilities Act (ADA) implications and other issues which employers are facing due to the COVID-19 crisis. The guidance in the updated materials includes:

  • ADA-covered employers may ask employees who call in sick if they are experiencing COVID-19 symptoms. Any information from employees must be kept as a confidential medical record consistent with the ADA.
  • When screening employees who are entering the workplace, employers may ask these employees about any symptoms identified by public health authorities as being associated with COVID-19.
  • Although generally taking an employee’s temperature is a medical exam, employers may nevertheless measure employees’ body temperature.
  • The ADA allows employers to require employees to stay home if they have COVID-19 symptoms.
  • The ADA also allows employers to require a doctor’s note certifying fitness for duty for returning employees.
  • As required by the ADA, all medical records about an employee, including those related to COVID-19, must be kept in a confidential file that is separate from the employee’s personnel file.
  • An employer may maintain a log of an employee’s temperature checks provided this information is kept confidential. It is advised employers keep a separate log for each employee.
  • An employer may disclose the name of an employee to a public health agency when the employer learns that the employee has COVID-19.
  • If a staffing agency or contractor learns that an employee whom it placed in an employer’s workplace has COVID-19, the agency or contractor may disclose this information to the employer.
  • An employer who is hiring may screen applicants for COVID-19 symptoms after making a conditional job offer so long as it does this for all entering employees in the same type of job.
  • An employer may delay the start date of an applicant who has COVID-19 or symptoms associated with it.
  • An employer may withdraw a job offer if the employer needs the applicant to start immediately but the applicant has COVID-19 or symptoms associated with it.
  • An employer may not delay the start date of a person who is over 65 or pregnant and thus at higher risk for COVID-19. The employer may, however, discuss with these individuals if they would like to postpone the start date due to their higher risk.
  • An employer should explore whether there are reasonable accommodations for individuals with disabilities who, therefore, may be at a greater risk from COVID-19.
  • An employee who already was working under accommodations prior to the pandemic may be entitled to additional accommodations unless such accommodations would create an undue hardship for the employer.

The updated comprehensive guidance document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” may be found on the EEOC website.

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