On April 9, 2020, the EEOC updated its Technical Assistance Questions and Answers guidance page to include additional information for employers during the COVID-19 pandemic, stating that the “EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local health authorities”.
During a pandemic, an employer may take the following actions:
- May “administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus,” provided that such testing is accurate and reliable, and is administered in accordance with guidance from the FDA and CDC or other health authorities;
- May ask employees if they are experiencing symptoms associated with the outbreak, which, for COVID-19 include fever, chills, cough, shortness of breath, or sore throat.” Employers must maintain “all information about employee illness as a confidential medical record in compliance with the ADA[;]”
- May add additional symptoms to determine whether the symptoms pose a direct threat to health in the workplace, provided that those symptoms are recognized by the CDC, other public health authorities, or reputable medical sources;
- May measure an employee’s body temperature, and may maintain a log of the collected information but must safeguard the log’s confidentiality;
- May require ill employees to stay home if they are showing symptoms of COVID-19;
- May store information related to the employee’s medical symptoms or contraction of COVID-19 in the employee’s existing medical file but must keep the information separate from the employee’s personnel file;
- Should require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.
Hiring and Onboarding
- May disclose the name of employees who have COVID-19 to public health agencies;
- May require staffing agencies to disclose the names of staffers who test positive to the employer;
- May screen job applicants for symptoms of COVID-19;
- May take an applicant’s temperature after a conditional offer of employment has been extended;
- May delay the start date of a new-hire who has COVID-19 or associated symptoms;
- May withdraw a job offer extended to an individual who tests positive for COVID-19;
- May not unilaterally postpone the start date, or withdraw an employment offer, of an asymptomatic individual who falls into a high-risk category, such as those who are over age 65 or pregnant ; however, an employer may discuss whether the individual would like to postpone their start date or take other precautionary measures;
- Must continue providing reasonable accommodations to employees whose duties can only be performed at the workplace and whose disabilities require place them at a higher risk from COVID-19, provided that the accommodations do not present an undue hardship. EEOC suggests low-cost solutions, such as designating one-way aisles, installation of plexiglass, tables, or other barriers to ensure minimum contact, or other actions to reduce chances of exposure. The EEOC also suggests “temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment” to prevent exposure;
- May ask questions of an employee to determine whether exacerbated preexisting mental illness or disorder, such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder is a disability, and discuss requested accommodations with the employee, may explore alternative accommodations, and may request medical documentation if needed;
- May place a higher priority on requests for reasonable accommodations needed for telework, and may begin or continue discussing appropriate reasonable accommodations necessary for the return from telework;
- May ask questions and request documentation related to the need for an accommodation either at home or in the workplace to determine whether the employee has a “disability” as defined by the ADA;
- May continue to engage in the interactive process and question an employee regarding why an accommodation is needed if the need is not obvious or already known. Possible questions for the employee may include: “(1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties)”;
- May choose to “shorten or forgo” the interactive process and grant a request for an accommodation in an effort to provide short-term accommodations that meet changing needs during the pandemic. Employers “may . . . devise end dates for the accommodation” granted to suit changing circumstances based upon public health directives, or “opt to provide a requested accommodation on an interim or trial basis, with an end date while awaiting receipt of medical documentation.” The EEOC notes that “choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts her at greater risk during the pandemic”;
- Must consider an employee’s request to extend an accommodation, particularly where government restrictions are extended or new restrictions are adopted;
- May ask employees about their need for accommodations when the workplace reopens;
- May consider whether a requested accommodation presents a “significant difficulty” to the employer, such as delayed delivery, difficulty in providing temporary assignments, removing marginal functions, or hiring temporary workers. Where an undue hardship exists, employers and employees should jointly seek an alternative accommodation;
- May consider the sudden loss of all or a portion of its income stream when evaluating whether an accommodation poses a “significant expense”. This evaluation should include the amount of discretionary funds available to the employer, and expected date restrictions on operations will be lifted, added, or substituted among other factors, Employers should weight the cost of an accommodation against their current budgets while considering the constraints caused by the pandemic;
- Must continue to be proactive in reducing harassment in the workplace and should remind employees that it is against the federal EEO laws to harass or discriminate against their coworkers on the basis of race, national origin, color, sex, religion, age, disability, or genetic information;
Return to Work
- May make disability-related inquiries and conduct medical exams if they are job related and consistent with business necessity. A medical exam “meet[s] this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.” Direct threats are determined based upon the best available objective medical evidence, including guidance from the CDC or other public health agencies.
- May implement screening consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time;
- May require employees to wear protective gear (including masks and gloves) and observe infection control practices (hand washing and social distancing); however employees with ADA accommodations or needs (such as non-latex gloves, modified face masks or gowns) or a religious accommodation should be consulted to ensure alternative requirements are available.
The full EEOC update, styled in a question and answer format is available here https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm Employers may also view the EEOC’s COVID-19 webinar here https://www.eeoc.gov/coronavirus/.
Please contact our labor and employment group with questions related to your EEO policies, procedures, or actions.