Mike Srstka, Davenport Evans

By Michael J. Srstka

The ongoing COVID-19 pandemic has created a great deal of uncertainty in the workplace, forcing many employers to search for ways to protect their staff while struggling to stay in business. Fortunately, the U.S. Equal Employment Opportunity Commission (EEOC) has recently provided guidance to assist employers in preventing the spread of COVID-19 without violating anti-discrimination laws, including the Americans With Disabilities Act and the Rehabilitation Act. These guidelines stress that while federal anti-discrimination laws continue to apply, employers will not violate these laws by following current COVID-19 guidelines set by the Center for Disease Control (CDC) and state and local health authorities. However, since guidelines from public health authorities will be frequently updated as the pandemic develops, it is important for employers to consistently follow the most recent guidance available.

The recent EEOC guidance answers many common questions that employers have raised during the COVID-19 crisis. The EEOC states that, so long as the confidentiality of employee information is maintained, employers may take precautions such as measuring employees’ body temperatures or asking employees whether they are experiencing symptoms of COVID-19 before they enter the workplace. Employers may require employees to stay at home if they show symptoms of COVID-19, and they may delay the start date of a recent hire who shows signs of COVID-19. While employers must still make reasonable accommodations for employees with disabilities, the ongoing COVID-19 pandemic may in some instances warrant a delay in discussing and providing such accommodations. While many other issues are addressed by the recent EEOC guidance, the overall theme is that during the COVID-19 pandemic, federal anti-discrimination laws will not interfere with employers who wish to follow current guidelines issued by the CDC and state and local health authorities.

The Department of Homeland Security (DHS) has similarly provided updated guidance for the completion of Form I-9, which is used to verify the identity and employment authorization of newly-hired employees. Under normal circumstances, in order to complete a Form I-9, employers are required to examine an applicant’s physical documents in person to verify his or her identity. During the COVID-19 pandemic, employers whose staff is working remotely will be permitted to examine such identification documents remotely. However, once normal operations resume, these employers will be required to examine these documents in person within three business days. Furthermore, these relaxed guidelines only apply to staff  working remotely.  If employees remain in the office, the employer is still required to examine those workers’ identification documents in person.

While the recent guidance provided by EEOC and DHS is helpful to employers who wish to protect their staff and prevent the spread of COVID-19 in the workplace, employers must remain aware of and in compliance with federal, state, and local employment laws and regulations. Employers must also take steps to remain up-to-date with guidance from the CDC and other health authorities. Please contact us for assistance in navigating through any employment law issues your business may be facing during this difficult time.

This article was written by Davenport Evans lawyer Michael J. Srstka and distributed in the Davenport Evans Employment Law eNews. To join the eNews list, click the button below. You can unsubscribe at any time.

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Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the State’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.dehs.com.