September 18, 2020

You Can’t Ask That! EEOC Updates Employer Health Screening Rules

What happened?

The Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance addressing several issues including employer-provided COVID-9 tests, what is required when addressing employee requests to work remotely, and addressing what disclosures of employee medical information are permitted and prohibited.  Perhaps the most critical aspect of the updated guidance addresses what questions employers can ask, and are prohibited from asking, regarding the health status of employees and their families.  Questions about an employee’s family and whether they are experiencing COVID symptoms are prohibited and violative of the Genetic Information Nondiscrimination Act, while questions about the employee’s own symptoms or personal travel are permissible.

Why you need to know about this?

Many employers are relying on employee health screenings and questionnaires to keep their workplace safe and open.  The EEOC’s updated guidance changes the rules on what can and cannot be asked by employers.  Asking questions or seeking information that is prohibited can expose employers to liability and costly litigation under a number of anti-discrimination laws.  In this precarious economic environment, employers should do all they can to avoid the costs and hardships of employment litigation.

What should you do now?

Employers should immediately review their medical questionnaires to ensure they do not ask any prohibited questions or seek protected information and seek to amend any questions that may now be improper.

The updated guidance contains additional critical information for employers, as well as new requirements under the law. The Department of Labor has also issued updated COVID-19 guidance, changing its prior regulations.  To learn more about these changes, and ensure your compliance, contact Hyland Levin Shapiro’s employment practice group.

If you have questions about this about this article, please contact Megan K. Balne at 856.355.2936 or balne@hylandlevin.com or Michael G. Greenfield at 856.355.2931 or greenfield@hylandlevin.com.