COVID-19: EEOC Guidelines for Return to U.S. Offices

With the Delta variant creating waves of new cases across the U.S., employers are delaying returns to the office or in some cases, sending returned workers back home.
Because the situation is still rapidly changing, it’s important to continue to track potential compliance issues that are in line with U.S. laws and regulations. Here are some interesting takeaways and reminders we found from the most recent Equal Employment Opportunity Commission (EEOC) guidance.

Antibody Test Requirements are Not Allowed
As of right now, an antibody test does not meet the American Disability Act’s (ADA) requirement of being “job related and consistent with business necessity” to become a standard medical requirement for U.S. employees. Health officials say antibody tests are much different than a test to determine if someone currently has an active case of COVID-19.

Asking an Individual Employee about COVID-19
While the recommendation from the EEOC is to maintain streamlined COVID-19 protocols that are applied to all employees. However, if an employer has a “reasonable believe based on objective evidence” that a team member may have COVID-19, that employer is able to ask one employee particular questions about illness.

Inquiring about Family Members
At the same time, the EEOC does not allow employers from asking employees about the COVID-19 status of family members. This is under the Genetic Information Nondiscrimination Act (GINA).

Due to COVID-19, there is currently a loophole to help keep your entire workforce safe. Employers may, in fact, ask employees if “they have had contact with someone who has been diagnosed with COVID-19 or someone who has symptoms associated with COVID-19.”

To remain compliant, just don’t use the word “family member.”

What if an employee refuses to follow a temperature check protocol?
Since we are currently in a pandemic, under the ADA act, if employees who report to a physical office do not comply with compliant COVID-19 protocols/questionnaires, an employer has permission to send the employee home.

Under these circumstances it is especially important to make sure your organization is adhering to official CDC guidelines.

Overall
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