On June 17, 2020, the EEOC issued additional, revised technical assistance to employers, specifically addressing necessary considerations for employers that have employees returning to the workplace who are at higher risk for more severe illness due to COVID-19. This update supplemented the agency’s earlier guidance regarding best practices for diagnostic testing of employees, and the need to balance obligations under the Americans with Disabilities Act (ADA) with adherence to guidance from the Center for Disease Control (CDC) and state and local public health authorities regarding the COVID-19 pandemic. The EEOC also recently updated its existing Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance.
In its latest guidance, the EEOC continues to emphasize that the ADA “do[es] not interfere with or prevent employers from following guidelines made by the CDC or state/local public health authorities” regarding COVID-19. This is particularly noteworthy in light of the growing number of state health department recommendations that employers “screen” employees for COVID-19.
The EEOC’s updated guidance addressed the following subjects:
• Testing and Medical Exams. The EEOC reaffirmed that during a pandemic, employers may ask employees who call in sick if they are experiencing COVID-19 related symptoms (including symptoms related to COVID-19 identified in EEOC guidance or those identified by public health authorities). The EEOC confirmed that for the duration of the direct threat posed by the pandemic, employers may administer COVID-19 diagnostic tests to employees before they are permitted to enter the workplace. Before doing so, the EEOC encourages employers to consult guidance from the CDC, FDA, and other public health authorities to ensure any tests they administer are accurate, reliable, and that the employer understands the likelihood of false-positives or negatives associated with the tests. Despite expressly permitting viral tests for COVID-19, the EEOC specifically prohibits mandatory anti-body testing, and considers anti-body testing to be an unlawful medical examination under the ADA.
• Confidential Medical Information. Many employers have been concerned about the need to disclose the names of employees who have been diagnosed with COVID-19 to ensure non-infected employees are aware of potential health risks. Though the EEOC in a March webinar stated that disclosing infected employees by name could violate the ADA’s prohibition on disclosing confidential medical information, the EEOC’s updated guidance appears to relax its position in certain respects. Specifically, the EEOC now states that contractors and staffing agencies may disclose the identity of an employee with COVID if they placed that individual in another employers’ worksite. In addition, employers may likewise disclose infected employee names to public health agencies if they learn an employee has been diagnosed with COVID-19. The EEOC’s updated guidance reiterates that employers must keep any medical information (including any of testing or medical information, and employee temperature logs) separate and confidential from an employee’s personnel file.
• Hiring. The updated guidance further reiterates that employers may delay or withdraw job offers to applicants that have COVID-19 or symptoms associated with the virus, but clarifies that employers may not postpone start dates of individuals simply because they are at higher risk from COVID (such as pregnant employees or those over 65).
• Reasonable Accommodations. The EEOC has not stated that a COVID-19 infection is a disability. Thus, an employee’s COVID-19 infection does not require an employer to provide a reasonable accommodation under the ADA.
Nevertheless, the new guidance encourages employers to continue to accommodate individuals with disabilities if they are subject to an increased risk for COVID-19. Specifically, the EEOC suggests that if an employee has a condition that makes them more susceptible to COVID-19, employers should consider providing accommodations to eliminate the direct threat posed by COVID-19, including: additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace, temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting), temporary job restructuring of marginal job duties or other accommodations to reasonably accommodate this request (such as potential physical barriers, location reassignment, job restructuring, or modified shift assignments). Similarly, if an employee’s preexisting mental illness has been exacerbated by the stress of the COVID-19 pandemic, the EEOC encourages employers to explore possible reasonable accommodations through an interactive dialogue to identify options that may enable those employees to continue working.
The EEOC encourages employees who (according to the CDC) have conditions that places them at risk for more severe COVID-19 related symptoms to inquire (or have a doctor ask on the employee’s behalf) about potential workplace accommodations. Such employees should provide employers with an explanation of the employee’s underlying condition necessitating the need for a workplace accommodation. The guidance reiterates that upon receipt of a request for an accommodation, employers are entitled to ask questions to determine whether the employee has a disability, and whether that disability can be reasonably accommodated without imposing an undue hardship.
The EEOC advised that employers may proactively ask employees with disabilities if they will require accommodations upon a return to work after stay-at-home orders are lifted. The EEOC encouraged employers not to postpone discussing workplace accommodations, even those that will only become necessary once an employee is no longer teleworking.
Further, the EEOC explained that certain accommodations that might not otherwise pose an “undue hardship” (i.e., significant burden or expense) to employers may, during times of pandemic, pose one now. For example, the EEOC explained that it may be 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 while employers’ physical workplaces are closed. Similarly, the EEOC acknowledged that a sudden loss of some or all of an employer’s revenue is a relevant consideration when determining whether an accommodation poses a significant expense rising to the level of an undue hardship.
The EEOC’s guidance makes clear that an employer cannot exclude an employee from returning to the workplace solely because the employer is aware that the employee has a health condition that places them at higher risk for more severe illness arising from a potential COVID-19 infection. An individual cannot be excluded from the workplace unless they pose a direct threat – a “significant risk of substantial harm” to their own health or the health of others. The guidance states that employers cannot base a direct threat determination solely upon the CDC’s list of high-risk conditions. Before excluding an employee from the workplace, an employer must conduct an individualized assessment, based on a reasonable medical judgment about a particular employee’s disability (and not the disability in general) using current medical knowledge and objective evidence. Employers are required to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm to the employee when making this assessment. In the context of the COVID-19 pandemic, the employer’s analysis should include consideration of the severity of the pandemic in the geographic area surrounding the workplace, the employee’s own health, the employee’s job duties, the likelihood that the individual might be exposed to the virus at the worksite, and measures the employer is taking to protect all workers (like mandatory social distancing).
Even if an employer determines that an employee’s disability poses a direct threat to his or her own health, the employer still must engage in the ADA interactive process with the employee to determine whether the employee can be reasonably accommodated via telework, leave, reassignment or other accommodations. The guidance states that an employee may be excluded from the workplace only if no reasonable workplace accommodation exits.
• Discrimination. In addition to the agency’s guidance regarding testing and accommodations under the ADA, the EEOC also encouraged employers to guard against discrimination and harassment based on national origin, race, or other prohibited bases in their workforces that may stem from misdirected fear related to the COVID-19 virus by reminding employees’ of company policies and laws against discrimination and harassment. Further, the EEOC reminded employers of their obligations under the Older Workers Benefit Protect Act when conducting mass layoffs that involve releases of age-discrimination claims.
• Return to Work. The EEOC explained that as stay-at-home orders are lifted, and employees return to work, employers will not be acting in contravention of the ADA if they follow guidance from the CDC or other public health authorities. For example, if the CDC instructs employers to screen employees by administering medical examinations, such examinations will not violate the ADA so long as the employer treats employees consistently and without regarding any protected status. In addition, to the extent that employers require employees to wear personal protective gear upon return to work, the guidance states that employers should engage in an interactive process with employees who require accommodations (based on religion or disability) to discern whether alternatives may be feasible.
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