In addressing the protections for “workers at higher risk,” the U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued guidance called “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws."

The Americans with Disabilities Act (“ADA”), Title I applies to private employers with 15 or more employees and to state and local government employers, employment agencies, and labor unions. The same protections also apply to federal agencies under Section 501 of the Rehabilitation Act. The Age Discrimination in Employment Act (“ADEA”), Title VII of the Civil Rights Act of 1964 (“Title VII”) and the ADA equally apply during COVID-19. The EEOC Guidance reiterates these underlying policies but notes that guidance from public health authorities is likely to change during the pandemic triggering the need to stay abreast of these developments.

The EEOC Guidance answers several questions regarding potential workplace accommodations, confidentiality of medical information, hiring practices, possible protections for older workers, pregnant workers and against the harassment of workers in certain protected classifications in light of COVID-19, and it aggregates prior questions and answers in earlier EEOC posted information. Specific subjects and responses in the EEOC’s June 17, 2020 communication are summarized briefly below:

Disability

• Employers can ask questions of employees who call in sick in order to assess an employee’s potential symptoms of COVID-19 to protect their workforce.
• Employers generally should stick with the CDC criteria when asking questions about symptoms to conduct workplace screening, but the list may expand with new guidance by public health officials and doctors as more information about COVID-19 becomes known.
• Employers are permitted to take an employee’s temperature, but fever may not always exist when an employee has COVID-19.
• An employer can require an employee who is ill with symptoms of COVID-19 to stay at home.
• Employers can require an employee who returns from COVID-19 to produce a doctor’s note certifying the employee is fit to return to work, which is not a disability-related question. 
• While an employer can administer a COVID-19 test, were it to mandate a medical test, it must be able to show the test is “job related and consistent with business necessity” under the ADA. If it does so, it must ensure the test is accurate and reliable.
• Employers cannot require employees to take an antibody test as a condition to return to work, because antibody tests are considered a medical examination under the ADA.

Confidential Medical Information

• Employers may store employee medical information but only in a separate medical file.
• If employers require employees to check temperatures each day, they may maintain a log of the results, but must keep this information confidential.
• Employers may disclose the name of an employee to a public health agency when it learns the employee has COVID-19.
• Staffing agencies may notify an employer and disclose the name of an employee it places at an employer (in order for the employer to determine whether that individual had contact with anyone in the workplace).

Hiring

• Employers may screen applicants for COVID-19, but only after making a conditional offer of employment, and provided it screens all employees entering the worksite.
• Employers can take an applicant’s temperature, but only after making a conditional offer of employment.
• Employers may delay the start date of employment for an applicant who is symptomatic of COVID-19.
• Employers may withdraw an offer to an applicant who has COVID-19 or symptoms of it, if the applicant must start work immediately.
• Employers cannot withdraw a job offer or delay a start date for a new employee simply because the employee is 65 or older or pregnant.

Reasonable Accommodation

• For jobs that must be performed at the worksite, employers may consider reasonable accommodations for workers whose disability creates a greater risk from COVID-19 including modifications of the workplace, temporary restructuring or marginal job duties, temporary job transfers or modifications to the work schedule or shift.
• Employees with pre-existing mental health illness or disorders, such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may ask their employers to conduct an analysis (called the interactive process) under applicable law to seek a reasonable accommodation to help with their condition(s).
• Employers need not postpone discussing a disability accommodation request with an employee seeking an accommodation during the time an employee is teleworking.
• An employee entitled to a reasonable accommodation prior to COVID-19 may need an additional accommodation(s) or the alteration of a prior accommodation, absent an undue hardship to the employer, during the pandemic.
• The pandemic does not change an employer’s right to request medical documentation or to ask questions about whether the employee is disabled under the ADA to seek to accommodate the employee either at the workplace or when telecommuting.
• Employers may opt to provide a temporary accommodation in response to an employee request where little time exists to evaluate an employee request and, therefore, limit the time period of the accommodation or provide it on a trial basis.
• Employers may ask employees whether they need a reasonable accommodation in the future when they return to work. (This topic appears to imply the employee already received an accommodation while telecommuting.)
• The pandemic does not change an employer’s ability to deny accommodation requests because they pose an undue hardship to the employer. An undue hardship may be different as a result of the pandemic than prior to the pandemic.
• The guidance lists potential undue hardships based on the existence of a “significant disability” and “significant expense” during the pandemic.
• The ADA and Rehabilitation Act continue to apply to “essential infrastructure workers” and “essential critical workers” classified by the CDC.
• Employers need not provide an accommodation request to avoid an employee exposing a family member who is at a higher risk from COVID-19.

National Origin, Race and Other Protected Classifications

• Employers should be diligent to communicate with their workforces to avoid misdirecting fear about COVID-19 to individuals in protected classifications, and employers should remind employees of company policy prohibiting harassment and discrimination in the workplace, particularly against employees of actual or perceived Chinese or other Asian national origin.
• An employer’s policies and practices to prohibit discrimination and harassment should continue to apply when an employee telecommutes.

Furloughs and Layoffs

• Consult EEOC technical assistance documents for information about waiver responsibilities for layoffs.

Return to Work

• Disability related inquiries under the ADA are permitted, provided they are job-related and based on business necessity. (Consider the CDC and other public health agency guidance.)
• Employers must take into consideration an employee’s rights under Title VII and the ADA related to requirements to wear protective gear, such as for disability or religious accommodations purposes.
• Employees must request or put an employer on notice of the need for a workplace accommodation in order to trigger an employer’s responsibility to consider one. If an employee does not request one, the ADA does not mandate an employer to provide one.
• The Guidance provides examples of potential accommodations and states as a best practice that employers may choose to educate employees about them.
• An accommodation may involve an alternative to regular screening to allow an employee access to the worksite, which an employee may be required to consider based on the specific request and situation.

Age

• Employers are not legally required to provide an accommodation to employees over the age of 65 merely based on age. Employers are not precluded from providing alternative workplace arrangements to employees over the age of 65, even if they do not provide such arrangements to younger employees between the ages of 40 and 65 years of age.

Caregivers/Family Responsibilities

• Employers may provide flexibility to employees with school-age children due to school closures or distance learning, provided they are not treating employees differently based on sex or other legally protected characteristics.

Pregnancy

• Employers may not exclude employees from the workplace on the basis of pregnancy.
• Employers are required to provide reasonable accommodations to pregnant employees under both the Pregnancy Discrimination Act and the ADA.

In comparing the recently-published EEOC Guidance to other public agency recommendations and guidance, it is important to note potential inconsistencies. Therefore, employers should consider a comprehensive approach to handling workplace requests, treatment and accommodations that includes communications from relevant federal, state and local enforcement agencies such as the EEOC and OSHA as well as state and local executive orders and guidance.