On April 17, 2020, the EEOC updated its guidance initially published on March 17, 2020, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to address additional employment concerns in the wake of the COVID-19 pandemic. Notable new topics addressed by the guidance, including issues related to temporary accommodations, undue hardship and returning to work, are discussed below. For a summary of the topics previously addressed by the EEOC in this guidance, please see our prior blog. The full EEOC guidance is also available here.

Temporary Accommodations

According to the EEOC, absent undue hardship, employers are required to provide reasonable accommodations to employees with disabilities exacerbated by COVID-19 and those at higher risk of contracting COVID-19 due to a pre-existing disability, even if on a temporary basis, to limit their exposure to the virus while the pandemic persists. Such accommodations may involve changing an employee’s work environment to reduce their contact with others, including designating one-way aisles or installing barriers to maintain minimum distances between customers and coworkers whenever feasible. Temporary restructuring of non-essential job duties, temporary transfers to a different position, remote work, and modified work schedules or shift assignments may also be reasonable accommodations to allow such employees to safely perform their essential job functions while reducing their exposure to COVID-19.

The EEOC’s updated guidance also suggests that when a request for accommodation is particularly urgent or an employer does not have enough time to discuss an employee’s accommodation request during the pandemic, employers may choose to forego the “interactive process”—the typical back and forth between the employer and employee to determine if the employee has a qualifying disability and disability-related need for the requested accommodation—and simply grant an employee’s request outright. Employers may alternatively modify the interactive process—for example, placing end dates on the accommodation—to suit changing circumstances based on public health directives, or provide a requested accommodation on an interim or trial basis for a fixed amount of time while awaiting receipt of the employee’s medical documentation.

Undue Hardship

The latest EEOC guidance also eases the burden on employers to demonstrate undue hardship in light of the circumstances caused by COVID-19, stating that in some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. To demonstrate undue hardship amid the pandemic, an employer must show that current circumstances create “significant difficulty or expense” in acquiring or providing certain accommodations, taking into account the employee’s job and workplace. For example, the guidance provides that it may be significantly more difficult in this pandemic for an employer to conduct a needs assessment or to acquire certain items, provide employees with temporary assignments, remove marginal functions or readily hire temporary workers for specialized positions. Delivery may also be impacted, particularly for employees who may be teleworking. The guidance further states that the sudden loss of some or all of an employer's income stream as a result of COVID-19, the amount of discretionary funds an employer presently has available considering other expenses, and whether there is an expected date when restrictions on the employer's business operations will be lifted, added or changed are relevant considerations to determine if a requested accommodation can be denied because it poses an undue hardship.

If a particular accommodation does pose an undue hardship, the employer should still engage in the interactive process and work with the employee to determine if it can provide an alternative accommodation that does not present such hardships. It is always a good idea to seek legal counsel before denying an accommodation request, especially if the denial is based on circumstances related to the pandemic.

Return to Work

While it is unclear exactly when states’ “stay-at-home” orders will be lifted, employers should start planning now for the reopening of their workplaces, as there will be many new regulations and employer obligations when employees are allowed to return to work in the workplace. Employers should ensure that any new requirements and protocols implemented in the workplace are consistent with the ADA and other applicable federal, state and local laws. To that end, the EEOC has approved several methods that employers may use to screen employees for COVID-19 before they enter (or re-enter) the workplace, which, if carried out properly, will not violate the ADA:

• Taking employee temperatures. Employers are permitted to conduct reliable medical exams to exclude employees with a medical condition such as COVID-19 that poses a direct threat to health and safety of others. This includes taking employees’ temperatures, so long as the process is consistent with advice from the CDC and public health authorities for that type of workplace at that time.
• Interviewing employees to confirm whether they are experiencing symptoms. Likewise, employers are permitted to make disability-related inquiries to determine if employees entering the workplace have COVID-19. This includes questioning employees about their symptoms or requiring employees to self-report their symptoms, so long as the inquiries are consistent with advice from the CDC and public health authorities for that type of workplace at that time.
• Administering COVID-19 testing. On April 23, 2020, the EEOC added COVID-19 testing as an acceptable method for employers to screen employees for the virus before allowing them to enter the workplace. However, employers administering COVID-19 testing to employees should make sure that the tests are “accurate and reliable” in accordance with guidance from the FDA, CDC or other public health authorities. There are also many notable challenges with such testing, including availability, cost and reliability of the tests.
• Sending sick employees home. Employers are allowed to send employees home if they experience symptoms associated with COVID-19 or test positive for the virus, and may require sick employees to remain home until they are symptom-free in accordance with CDC guidelines. Such employees may be required to provide a fitness-for-duty certification or doctor’s clearance note in order to return to work. As a practical matter, however, employers should consider the challenges of getting such documentation during the pandemic and be amenable to accepting alternative forms of documentation to verify an employee’s fitness for duty, such as a form, stamp or e-mail from a local clinic certifying that the employee does not have the virus, since many health care professionals will be too busy to provide fitness-for-duty documentation. Remember, all employee health screening information must be maintained as a confidential medical record in compliance with the ADA and disclosed only on a need-to-know basis (although employers are permitted to keep daily logs of employees’ temperatures and disclose the name of an employee diagnosed with COVID-19 to a public health agency and others with a “need to know”).

In addition to screening procedures, the EEOC also recommends that employers continue to follow the guidance offered by the CDC and public health officials and, if possible, require employees to observe infection control practices such as social distancing, regular handwashing and other measures in the workplace to prevent transmission of the virus. Returning workers may also be required to wear masks, gloves or other personal protective gear at work, but any employee who requests modified protective gear due to a disability or religious belief must be accommodated if feasible and not an undue hardship on the employer's business. Importantly, these requirements may apply not just to employees, but also to anyone who enters the workspace, including customers, clients and vendors.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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