EEOC Doesn’t Need Individual Charge to Launch Probe

EEOC Doesn’t Need Individual Charge to Launch Probe

The Equal Employment Opportunity Commission (EEOC) recently published a new webpage reminding us of its authority under certain circumstances to launch a discrimination investigation even without receiving a charge from an employee or other private party.


Indeed, Congress expressly authorizes the commission (meaning its five-member governing authority) to issue a “commissioner charge” when it believes an employer is engaging in discriminatory employment practices in violation of three of the laws it enforces: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the employment provisions of the Genetic Information Nondiscrimination Act (GINA).

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What your Managers need to hear about COVID-19

1. Do not ask your employees if they have COVID-19.

While you can visually see an employee coughing, sneezing, and generally feeling sick at the office and you are right to ask an employee to go home under these circumstances- remind your management team that they cannot ask an employee if they have a specific illness. The Americans with Disabilities Act (ADA) restricts the level of questions that an employer can make into an employee’s medical conditions, and you do not want to run afoul of the ADA. You can however ask the following general health questions of an employee- (1) Are you feeling alright?, (2) Are you okay to continue to work?, or (3) Would you like to go home and get some rest?

2. Can I ask an employee to get tested for COVID-19?

No, the ADA prevents an employer from requiring an employee get a medical exam unless (1) the employer can demonstrate the medical exam is job-related, or (2) the employer has a reasonable belief the employee poses a direct threat to the health & safety of the employee or others THAT CANNOT BE ELIMINATED OR REDUCED BY REASONABLE ACCOMMODATION (reasonable accommodation in this case being sending the employee home and preventing their coming in contact with other employees).

3. You cannot take an employee’s temperature to determine if they may be infected with COVID-19.

Again the ADA comes into play, as taking an employee’s temperature or performing any other diagnostic falls under the category of a “medical examination” under the act. Its best to leave the medical exams to the doctors and other healthcare practitioners.

4. Do I have to allow an employee to wear a face mask to work?

No. The Centers for Disease Control and Prevention (CDC) advises against wearing a face mask unless an individual is sick with symptoms of the virus or is taking care of someone with the virus at home or in a health care setting.

5. One of your employees tested positive for the COVID-19, now what?

In the case you have an employee inform you that they have tested positive for the virus, it is important to send the employee AND ANY OTHER EMPLOYEES WHO THEY WORKED CLOSELY WITH home for a 14-day self-quarantine period to try and prevent further spread of the virus. Remember again that the employee’s medical diagnosis is protected health information, and that you as an employer cannot disclose their positive test results to the rest of your staff. You cannot disclose the name of the employee to anyone else at your company or you risk running afoul of confidentiality laws. Employers should inform their employees that possible exposure has occurred in the workplace without disclosing any identifying information about the individual who tested positive.

It is very important if the employee who tested positive for the virus was physically at your work site, that you take deep cleaning measures to eliminate the potential threat from all surfaces that the employee was in close contact to. If you work in a shared office space arrangement, contact management of the space and ask them if they can deep clean any shared spaces that the individual might have been in contact with.

After taking the measures above, it is imperative that you report the positive test to your local OSHA office which is attempting to track all of the COVID-19 cases. For example, positive test cases in South Florida should be reported to the Region 4 Offices of OSHA in Atlanta, GA-

Region 4
Atlanta Regional Office
(AL, FL, GA, KY*, MS, NC*, SC*, TN*)
Sam Nunn Atlanta Federal Center
61 Forsyth Street, SW, Room 6T50
Atlanta, GA 30303
(678) 237-0400 (678) 237-0447 Fax

If you are in another region of the country, you can find your OSHA region and contact information in the OSHA “Guidance on Preparing Workplaces for COVID-19” job aid.

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