EEOC Updates 2009 Pandemic Guidance with Specific Guidance to COVID-19

March 20, 2020 - Christine Gantt-Sorenson

The Equal Employment Opportunity Commission (EEOC) issued an update to its 2009 pandemic guidance, “Pandemic Preparedness in the Workplace and the ADA,” originally detailed in our blog issued the day COVID-19 was declared a pandemic.

The updated guidance advises employers that:

Employers should follow guidance from the Centers for Disease Control (CDC) as well as state and local public health authorities on how best to slow the spread of COVID-19.
Employers should refer to the CDC’s guidelines for workplaces and note those applicable to specific workplaces.
Following CDC guidelines will not interfere with the requirements of the American’s with Disabilities Act (ADA) or the Rehabilitation Act.
The EEOC understands CDC and other public health guidance will change as the COVID-19 situation evolves.
COVID-19 meets the standard of “direct threat” under the ADA.
The EEOC understands Employers may be delayed in responding to and discussing employees’ requests for accommodation under the ADA but notes Employers should address these requests as soon as possible.
The EEOC recommends Employers should use interim solutions to enable employees to keep working.

Regarding specific actions Employers may take with applicants and employees, the updated guidance states an Employer may:

Screen post-offer applicants for symptoms of COVID-19 after making a conditional job offer as long as this is required of all entering employees in the same type of job.
Delay the start date of an applicant who has received an offer of employment if the applicant registered a compliant fever or is experiencing symptoms of COVID-19.
Withdraw a job offer accepted by an applicant for a position that the Employers needs to begin immediately when the applicant is not able to due to COVID-19 symptoms or diagnosis.
Send an employee home who has symptoms of COVID-19.
Inquire as to whether employees have COVID-19 or are experiencing COVID-19 symptoms, or if employees are feeling ill at work or if they call in sick.
Take employees’ body temperatures [but note ADA confidentiality requirements must be adhered to].
Adhere to the advice issued by the CDC or other state and local public health authorities as to when it is permissible for employees to return to work after traveling or visiting a specified location, whether business or personal travel.

We are noticing that many employers have not yet adopted policies or practices to address the spread of Coronavirus or devised plans for business operations in the event of a required quarantine, and recommend that Employers do so immediately. The hope is that measures implemented now will not only minimize potential outbreaks but also permit employers to develop strategies for continuing business operations in a measured and deliberate fashion amid any eventuality of any publicly declared quarantine.

"Everything we do before a pandemic will seem alarmist. Everything we do after will seem inadequate." - Michael Leavitt, former HHS Secretary under President George W. Bush.

Additional Resources

HSB COVID-19 Resources

SC Telehealth Virtual Care Providers

Databases for exposure:
Johns Hopkins University
CDC
Reuters