The U.S. Equal Employment Opportunity Commission (EEOC) is continuing to offer COVID-19 related guidance to support employers and employees in navigating the workplace during the pandemic. As we discussed in a previous blog post, the EEOC updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance (first published in 2009) to specifically address the COVID-19 pandemic. In addition to the Pandemic Preparedness guidance, the EEOC has issued What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, technical assistance guidance that contains numerous COVID-19 related questions and answers. Similar to the pandemic preparedness guidance, the technical assistance addresses employer’s obligations under the Americans with Disabilities Act (ADA), specifically as they relate to accommodation requests and medical exams due to COVID-19, as well as other COVID-19 related workplace issues. The EEOC has continued to regularly update the technical assistance since its initial publication in March 2020, with the most recent updates in June 2020.
The EEOC has explained that EEO laws like the ADA and Rehabilitation Act continue to apply during the COVID-19 pandemic, but do not interfere with or prevent employers from following guidelines and suggestions made by the Centers for Disease Control and Prevention (CDC) or state and local public health authorities concerning preventative measures employers should take to address COVID-19. Employers should be aware that guidance from public health authorities is likely to evolve as the pandemic continues and should monitor the most current information to maintain workplace safety.
The technical assistance includes, among other items, the following guidance:
- If an employee calls in sick during the COVID-19 pandemic, an employer may ask the employee if he or she is experiencing symptoms of the virus, including fever, chills, cough, and shortness of breath or sore throat. The employer must maintain all information about an employee’s health or illness as a confidential medical record in compliance with the ADA.
- When screening employees entering the workplace, employers may ask them about the COVID-19 symptoms identified by the EEOC, as well as the evolving list of symptoms identified by the CDC and other public health authorities. For example, loss of smell or taste and gastrointestinal problems have now been identified as additional symptoms.
- In general, measuring an employee’s body temperature is considered a medical examination and, as such, must be “job related and consistent with business necessity.” As the CDC and state and local authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may take the body temperatures of employees during the COVID-19 outbreak. Employers should be mindful that not all individuals with COVID-19 have fevers.
- An employer may require an employee who has COVID-19 symptoms to leave the workplace and require an employee with symptoms to stay home, both of which are recommended by the CDC. The ADA does not interfere with employers following this advice.
- The ADA allows an employer to require a doctor’s note certifying an employee’s fitness for duty when the employee returns to work, since such inquiries are not considered disability-related. (The EEOC notes that in the case of severe pandemics, such as COVID-19, the inquiry would still be justified under ADA standards even if it were considered to be disability-related). Given current COVID-19 related challenges, however, doctors and other health care professionals may be too busy (both during and immediately following the pandemic) to provide fitness-for-duty documentation. Therefore, another approach may be necessary, such as relying on local clinics to provide forms, stamps, or emails certifying that employees do not have the virus.
- The ADA requires that mandatory medical tests of employees be “job related and consistent with business necessity.” The EEOC has stated that an employer may take steps to determine whether an employee entering the workplace has COVID-19 because such an individual will pose a direct threat to the health of others. Accordingly, an employer can administer COVID-19 testing to employees before they come to work to determine if they have the virus. Employers should review the most up-to-date guidance from the U.S. Food and Drug Administration, the CDC, and other public health authorities to ensure that the tests being administered are accurate and reliable – a requirement under the ADA.
- In accordance with guidance from medical and public health authorities, employers should require – to the greatest extent possible – that employees observe infection control measures, such as social distancing, regular handwashing, and other measures to prevent transmission of the virus at work.
- If an employee requests a COVID-19 related accommodation either at home or in the workplace, the pre-COVID-19 standards remain, and an employer may ask questions or request medical documentation to confirm that the employee has an ADA-covered “disability” for which an accommodation is needed, including: (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 or her position (that is, the fundamental job duties).
- Given the current circumstances relating to COVID-19, however, an employer may decide to shorten or even forgo the interactive process (i.e., exchange of information with employee) and simply grant the accommodation request. When government restrictions change or are partially or fully lifted, the need for accommodations may also change, potentially resulting in more accommodation requests. Employers should consider adapting their interactive process by, for example, setting end dates for granted accommodations, consistent with changing circumstances based on public health directives.
- An employer may decide to provide requested accommodations on an interim or trial basis while awaiting medical documentation.
- In preparing to return to the workplace, an employer may ask employees with disabilities to identify any accommodations that they may need when the workplace reopens and begin the interactive process to find out whether an employee’s impairment is a covered disability and the reasons for which an accommodation is needed.
- The ADA does not require an employer to provide a particular accommodation if it poses an “undue hardship” – that is, “significant difficulty or expense” for the employer. In some cases, an accommodation that would not have posed an undue hardship pre-pandemic may impose one now. “Significant difficulties” under the current circumstances may include, for example, providing employees with temporary assignments, hiring temporary workers for specialized positions, or acquiring and delivering items for employees seeking to work remotely. Similarly, when considering whether an accommodation poses “significant expense” for an employer, the EEOC has acknowledged that, while this was a difficult standard to meet pre-pandemic, the sudden loss of all or some of a company’s income because of COVID-19 makes this consideration more relevant. While an employer may not outright reject an accommodation simply because it costs money, the employer may consider the cost of the accommodation against its budget and available discretionary funds due to the pandemic. Where an accommodation does pose an undue hardship, the EEOC encourages employers and employees to discuss possible alternatives that do not cause significant difficulties or expenses.
- In light of the CDC’s Interim Guidelines for COVID-19 Antibody Testing, which states that antibody test results “should not be used to make decisions about returning persons to the workplace,” employers may not require their employees to be tested for antibodies before returning to the workplace. The EEOC does not consider these tests to be “job related and consistent with business necessity.”
The “Return to Work” portion of the technical assistance has recently been updated with a focus on “high-risk” employees (i.e., those categorized at higher risk for severe illness due to COVID-19 under CDC standards). The technical assistance now includes the following:
- A high-risk employee must, either verbally or in writing, ask for a change that is necessitated by the underlying condition that makes the employee at risk. As with all other accommodation requests, the term “reasonable accommodation” need not be used; instead, the employee or someone acting on his or her behalf may simply state the need for a change to meet a medical need. In assessing the request, an employer may ask questions or seek medical documentation to see if an accommodation can be made without undue hardship.
- Where an employer knows an employee is high-risk but the employee has not sought an accommodation, the ADA does not require the employer to take action. Even if the employer is concerned that the employee’s health may be jeopardized by returning to the workplace, the ADA precludes the employer from excluding the worker simply because a medical condition potentially puts the employee in a high-risk category. Such action may be taken only if the employee’s disability poses a “direct threat” to his or her own health that cannot be eliminated or reduced by a reasonable accommodation. The direct threat standard remains high and may be met only if the individual’s disability poses a “significant risk of substantial harm” to his or her own health. Thus, an employer must assess the duration of the risk, nature and severity of harm, likelihood that harm will occur, and imminence of any such harm. This type of analysis would include considerations based on the severity of the pandemic in the employee’s particular area and the employee’s own health and particular job duties. The direct threat analysis would also involve the likelihood that the employee would be exposed to the virus at the workplace, as well as preventative measures taken by the employer to prevent the spread of COVID-19.
- Even when the employer determines that the employee poses a direct threat to his- or herself, it still cannot exclude the employee from the workplace or take other adverse action unless there is no way to provide an accommodation without undue hardship. The employer must consider whether accommodations exist that would make it safe for the employee to return to work and perform his or her essential functions. If no such accommodations exist, the employer must then assess whether the employee may work remotely, take leave, or be reassigned to a position that is safer for the employee. If, after all of these considerations, there is no reasonable accommodation that can be made, then and only then can the employer bar an employee from the workplace.
- Despite the CDC encouraging employers to provide maximum flexibilities to employees who are 65 years and older, due to these individuals being at a higher risk for a severe case of COVID-19 if they contract the virus, the EEOC notes that such employees are protected under the Age Discrimination in Employment Act (ADEA). Accordingly, the ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her age even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19. However, the ADEA does permit employers to provide flexibilities for employees ages 65 and older, even if this means employees ages 40-64 (who are also protected under the ADEA) are treated less favorably based on age in comparison.
- The guidance offers examples of accommodations that may eliminate (or reduce to an acceptable level) the direct threat to self for high-risk employees, such as: providing additional or enhanced protective gowns, masks, or other gear beyond what the employer generally provides to employees returning to its workplace; installing a barrier that separates an employee with a disability from coworkers and the general public; eliminating or substituting less critical or incidental job duties; temporarily modifying work schedules; or moving high-risk employees to safer locations. These are just some examples, and employers and employees should discuss other possible ideas as part of the interactive process.
Employers should understand their continuing obligations under the ADA and applicable state and local disability discrimination laws and anticipate and prepare for the fact that accommodation requests will be more frequent and complicated in these challenging times. Ongoing monitoring of evolving EEO and other employment laws is essential to ensure compliance.
The members of the Gibbons Employment & Labor Law Department are available to assist you in managing the many workplace issues and concerns during the COVID-19 pandemic.