By: Chantal N. Guerriero, Esq. and Ty Hyderally, Esq.

Last month, the Equal Employment Opportunity Commission updated its guidelines concerning whether and when employers may request medical information from employees returning to work. The EEOC has been periodically updating its guidance throughout the duration of the pandemic, with the aim to refine, correct, and clarify with each update. Some of the EEOC’s most recent updates discuss the extent to which employers may request an employee’s medical information while still adhering to the Americans with Disabilities Act (the “ADA”). It is helpful to review some of the EEOC’s prior guidance concerning this topic as well.

Because COVID-19 is a public health emergency, employers have fairly broad latitude concerning COVID-19 protocol. The EEOC has noted that employers may require temperature checks upon entry to work, as well as require that employees who experience COVID-like symptoms return home. Employers may also require a doctor’s note clearing such employees prior to allowing their return to work. Consistent with the ADA, employers are also permitted to administer mandatory COVID-19 tests to employees in the workplace to the extent that such tests are “job related and consistent with business necessity” per the ADA.  

In their updates, the EEOC also noted that employers may directly ask employees whether they have been diagnosed or tested with COVID-19. However, the ADA mandates that the employer may not target a single employee with these inquiries unless the employer has a reasonable, objective belief that the employee in fact has COVID-19.

That being said, where an employee refuses to be tested or answer COVID-related inquiries, the employer may bar that employee from being physically present in the workplace. However, depending on the employee’s reason for refusing to cooperate, the employer may be required to accommodate and engage in an interactive discussion with the employee in order to assure the employee that the testing will remain confidential, as required under the ADA, and that it is strictly related to workplace safety concerns.

To that end, the EEOC also addressed the continued need for employers to adhere to the ADA’s confidentiality requirement concerning the release of medical information. Where an employee in the workplace is suspected of having symptoms of COVID-19 or to have actually contracted the disease, the name of the employee must be kept confidential. The EEOC notes that notifying staff that an employee has or is suspected to have COVID-19 provides sufficient notice to employees while respecting this confidentiality requirement. Employees, however, who suspect that a particular employee has COVID-19 may nonetheless discuss their concerns with their supervisors and reveal the name of the suspected employee.

It should be noted that an employer’s failure to adhere to the standards set forth under the ADA or consequently under the New Jersey Law Against Discrimination (“LAD”), may create a cause of against such employers. For example, a violation of the LAD may occur where an employee with a disability or serious medical condition is targeted by the employer, and the employer does not have a reasonable belief that the employee is infected with COVID-19. Another example of a violation may occur under the Conscientious Employee Protection Act (“CEPA”), where an employee objects to an employer’s violation of a clear mandate of law or public policy, such as the requirement that an employee’s medical information be kept confidential. We are mindful that it may be difficult for employees to navigate the new normal and to determine whether their employer has violated any of the above provisions. If you feel that your employer may have committed a legal violation, you should seek the advice and assistance of a qualified attorney.

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