- Federal law does not prohibit a manager from reporting to company officials that an employee has COVID-19, or has symptoms of the disease, in order to take actions consistent with public health guidance, the U.S. Equal Employment Opportunity Commission said in a guidance document updated Sept. 8.
- The Americans with Disabilities Act requires an employer to keep all medical information confidential, and this would include information about an employee's COVID-19 symptoms or diagnosis, EEOC said. "Employers should make every effort to limit the number of people who get to know the name of the employee," the agency added.
- Employers may consider using a general descriptor when informing workers who may have contact with an employee who has COVID-19 or who has symptoms, even if co-workers may be able to determine who the employee is, EEOC said. Officials designated as needing to know the identity of an employee "should be specifically instructed that they must maintain the confidentiality of this information," per the guidance.
The situation addressed in this aspect of the Sept. 8 update "is a bit of a tough one," FisherBroyles partner Eric Meyer said in a video commenting on the update.
Meyer said that employers may want to consider appointing a point person, "or maybe point people, for very few," to whom managers can report information that an employee either has COVID-19 or has symptoms of the disease. The ADA also does not prevent an employee from communicating to a supervisor about co-worker's symptoms associated with COVID-19, Meyer noted.
Other areas addressed in the Sept. 8 update include a clarification that employers may ask all employees who will physically enter the workplace whether they have COVID-19 or symptoms, but that the standard for this type of inquiry is different with respect to individual employees. "If an employer wishes to ask only a particular employee to answer such questions, or to have her temperature taken or undergo other screening or testing, the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease," EEOC said.
The agency also stated that the Genetic Information Nondiscrimination Act prohibits employers from asking employees whether they have family members who have COVID-19 or symptoms. Employers may, however, ask employees whether they have been in contact with someone who has COVID-19 or symptoms associated with the disease, EEOC said.
EEOC previously updated its COVID-19 guidance in June, when it discussed returning pregnant or older workers to the workplace. The agency said in that update that employers should not prevent such workers from returning on the basis of these characteristics, "[e]ven if motivated by a benevolent concern."