During the COVID-19 pandemic, the Equal Employment Opportunity Commission (“EEOC”) has issued periodic updates to a technical assistance question-and-answer document, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to provide guidance to employers in understanding their rights and obligations under the Americans with Disabilities Act (“ADA”) and other employment laws during the pandemic. Recently, the EEOC issued another update that employers should be aware of as they consider additional safety-related precautions and contemplate measures that may be taken when many stay-at-home directives are lifted and employees are permitted to return to the workplace.
Employers also should be mindful of evolving guidance from the Centers for Disease Control and Prevention (“CDC”), which continues to be updated as the pandemic continues. Indeed, the EEOC’s technical assistance document explains that while equal employment opportunity laws like the ADA remain in effect during the COVID-19 pandemic, “they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”
Ordinarily, making health-related inquires and measuring an employee’s body temperature are considered medical examinations that are permissible under the ADA only when they are “job-related and consistent with business necessity.” In light of the World Health Organization’s declaration of COVID-19 as a pandemic, the EEOC has given employers more flexibility to determine whether applicants and employees, including new hires and those returning to the workplace, have COVID-19 or are exhibiting symptoms associated with it, because individuals with the virus pose a “direct threat” to the health of others. For example, the EEOC’s recent guidance permits employers: (1) to screen job applicants for symptoms of COVID-19 and withdraw offers of employment or delay employment start dates if applicants have COVID-19 or symptoms associated with it; (2) to ask employees who call in sick if they are experiencing symptoms of the virus as identified by the CDC and public health authorities, such as fever, chills, cough, shortness of breath, sore throat, loss of sense of taste or smell, or gastrointestinal problems; (3) to measure employees’ body temperature, including on a daily basis, before allowing them to enter the workplace; (4) to ask all employees entering the workplace questions about symptoms (or require self-reporting); and (5) to require employees who had COVID-19 or became ill with symptoms of COVID-19 and who wish to return to work to provide a doctor’s note (or other form, email, etc., such as from a local clinic) certifying the employee’s fitness for duty.
In addition, relying on the “direct threat” analysis, the EEOC’s newest update also specifically permits employers to administer COVID-19 tests (to detect the presence of the virus) before permitting employees to enter the workplace. This may be an important consideration for employers as they contemplate how best to reopen their physical workplaces after the requirements of many current stay-at-home directives have either been loosened or lifted altogether. The EEOC has cautioned, however, that employers “should ensure that the tests are accurate and reliable.” And, since no testing is perfect, and there may be false-positives and false-negatives associated with any form of testing, the EEOC suggests that employers “may wish to consider the incidence of false-positives or false-negatives associated with a particular test.” The EEOC further notes that employers should keep up-to-date on guidance from the CDC or other public health authorities, as well as the U.S. Food and Drug Administration “about what may or may not be considered safe and accurate testing.”
In addition to testing, the EEOC advises employers to continue requiring employees, to the greatest extent possible, to engage in social distancing, regular hand-washing and other infection control practices. Employers may also require employees to wear protective gear (e.g., masks and gloves), but must be mindful of the potential need to accommodate employees, including modifying personal protective equipment for disabled employees under the ADA and for religious accommodations under Title VII of the Civil Rights Act.
Under the EEOC’s guidance, the keys for employers who wish to implement reliable medical exams and health-related inquiries upon re-opening are to implement screenings in a manner that is “consistent with advice from the CDC and public health authorities for that type of workplace at that time,” and to “make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion” from the workplace.
Furthermore, as with all medical information, employers must treat tests and health-related inquiries as confidential medical records in compliance with the ADA and store them in a confidential medical file that is separate from the employee’s personnel file. Importantly, however, the EEOC’s recent guidance clarifies that an employer who learns that an employee has COVID-19 may disclose the name of that employee to a public health agency. Further, staffing agencies and contractors may inform employers with whom they contract of the name of an employee who has COVID-19 because the employer may need that information to determine whether that employee had contact with others at the worksite.
The EEOC also recently provided additional guidance on reasonable accommodations related to COVID-19.1 For example, employees whose physical or mental disabilities may put them at greater risk from COVID-19 may be entitled to reasonable accommodations to eliminate potential exposure while still enabling employees to perform the essential functions of their jobs. The EEOC’s guidance explains that “[a]s with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.” In addition, the EEOC’s guidance notes that employers may shorten this interactive process and provide a temporary accommodation if there is urgency to the accommodation.
As government restrictions change or are lifted, the need for accommodations, and an employer’s ability to accommodate them without undue hardship, may change as well. The EEOC’s guidance explains that, in advance of reopening, employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace reopens. Given the pandemic, some of those accommodations may constitute an undue hardship for employers even though such accommodations may not have qualified as such prior to the COVID-19 outbreak. For example, as the EEOC’s guidance explains, “it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.”
The EEOC’s guidance acknowledges that financial considerations may impact the analyses of reasonable accommodations and undue hardships. “[T]he sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer's operations will be lifted (or new restrictions will be added or substituted). These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.”
The EEOC’s guidance addresses discrimination and harassment as well. The EEOC encourages employers to guard against workplace harassment and discrimination based on national origin, race or other prohibited bases associated with misdirected fear related to the COVID-19 pandemic. Further, the EEOC encourages employers to remind employees of laws prohibiting harassment and discrimination and advise supervisors and managers to watch for, stop and report any discrimination or harassment related to the COVID-19 pandemic.
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1 The EEOC’s guidance does not indicate that a positive COVID-19 diagnosis is, by itself, a disability under the ADA. But complications from the virus certainly could result in employees developing longer-term conditions that rise to the level of a disability.