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EEOC Issues Further Updates to COVID-19 Allowable Inquiries

The U.S. Equal Employment Opportunity Commission (EEOC), charged with enforcing the provisions of the Americans with Disabilities, has been trying to adapt to ever-changing circumstances and information amid the COVID-19 pandemic.

In its most recent iteration of employer guidance, the EEOC expands permissible testing in the workplace. It initially allowed for testing employees when they first returned to the workplace. In its latest guidance, the EEOC allows periodic testing for employees already working to determine if their “continued presence” would be a direct threat to others. Job-related testing consistent with the Centers for Disease Control and Prevention (CDC) guidelines will meet ADA standards, according to the EEOC.

Employers are permitted to ask employees if they have COVID-19 or any symptoms associated with it or if they have been tested for it. Employers do not have to make their inquiries equally across the workforce, in fact, just a single employee may be asked if the employer has a “reasonable belief based on objective evidence” that the employee may be sick. Employers may ask specific information about symptoms from employees who feel ill and ask about employee travel. However, employers may not ask employees about family members who may have COVID-19 or its symptoms. This preclusion does not prevent employers from asking the employees whether they may have been in contact with someone who had COVID-19 or its symptoms. Lastly, employees refusing to answer COVID-19 questions or have their temperature taken may be barred from entry to the workplace. The guidance does not address permitted employee exceptions to the screenings. For more details, visit the EEOC website.