And Now A Word From the EEOC....
With other federal agencies such as the DOL and OSHA issuing detailed guidance and rules in this time of COVID-19, the EEOC wants everyone to know that they are doing—not a whole lot. Yesterday, they issued some Technical Assistance entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. This document updates more detailed guidance for a pandemic that the EEOC issued back in 2009. According to this new technical assistance, not only may employers lawfully take employee temperatures to screen for COVID-19, they may also ask employees if they are experiencing any symptoms of COVID-19, such as fever, chills, cough, shortness of breath, sore throat, new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting. All medical information acquired in response to these questions must be maintained as confidential.
There are also some questions and answers, but for the most part, the EEOC defers to the CDC and public health authorities.
The EEOC has also temporarily suspended the issuance of charge closure documents unless a charging party requests them. Normally, when the EEOC closes a file, it issues a Notice of Right to Sue, and if a charging party wants to file a lawsuit, they must do so within 90 days from receipt of that Notice of Right to Sue. Basically, the EEOC is not issuing Notices of Right to Sue unless a charging party asks for one, which is slowing down an already slow charge investigation and closure process.
Fear not, because the EEOC is likely to get very busy after the public health crisis passes. Not only will they need to resolve the backlog of open cases, but right now, people can file charges with EEOC through its electronic portal. We can expect to see charges filed by many laid off or furloughed employees who believe that these actions were discriminatory. In addition, we expect charges filed pursuant to the Americans With Disabilities Act arising out of accommodation requests or medical inquiries.
Pro Tip: Right now, employers need to be ready for a possible onslaught of discrimination charges. To that end, it is critical that employers prepare and preserve documentation to support the non-discriminatory reasons for their layoff and furlough decisions. In addition, make sure that all employee medical information is preserved as confidential, and do not be tempted to ask for any medical information beyond what is necessary to determine if the employee has been exposed to COVID-19 or for other reasons that are job-related and consistent with business necessity. This is an unprecedented situation, so consulting with qualified counsel is more important than ever.