On September 8, 2020, the EEOC once again updated its guidance on the Americans with Disabilities Act (“ADA”) and the Coronavirus pandemic. EEOC Updated Guidance. The new document, through a question and answer format, expands the EEOC’s prior guidance on how the ADA applies to the current pandemic. Here are some takeaways from the updated guidance:
1. An employer may ask all employees who are physically entering the workplace if they have COVID-19, symptoms of COVID-19 and/or if they have been tested for COVID-19. An employer may exclude any employees who have COVID-19 or symptoms of COVID-19 because they pose a direct threat to the health or safety of others. Be aware, however, that employers should not be singling out specific employees to ask these questions unless there is a valid reason to suspect that a specific employee may have COVID. Rather, the employer generally should ask all employees the questions in order to avoid any suggestion of discrimination. (If an employee is teleworking, those questions generally would not be appropriate.)
2. If a manager learns that an employee has COVID-19 or symptoms associated with it, may the manager report this? The answer is a resounding “yes.” While medical information, even if not about a disability, is considered confidential information under the ADA, this does not prevent the manager from reporting the information to the appropriate personnel so that action can be taken consistent with guidelines from the CDC and/or the local health authorities. It is recommended that someone in management be designated to receive this information so as to limit the number of people that may be informed of the employee’s medical information.
The employer also is not prevented from asking the affected employee to identify those with whom he/she has come in contact. Furthermore, the employer can take action by notifying those who have come in contact with the affected employee without identifying the employee. The fact that the co-workers may be able to determine who the employee is from a generic description such as “someone on the fourth floor” does not prevent the employer from informing the other employees that they may have been exposed to the virus.
3. If an employee refuses to have his/her temperature taken or to answer questions regarding COVID-19 symptoms and/or COVID-19 tests, the employer may exclude the employee from the workplace.
4. An employer may not ask employees whether they have family members who have COVID-19 or have symptoms associated with COVID-19. The Genetic Information Nondiscrimination Act (“GINA”) prohibits asking an employee medical questions about family members, and there is no pandemic exception. Rather, an employer should ask broader questions such as whether the employee has come in contact with anyone diagnosed with or having symptoms of COVID-19. In that way the employer gets the same information without running afoul of GINA.
5. As at any other time, an employer may ask an employee who is absent from work why he/she is absent. During the pandemic, employers also are able to ask employees who call in sick whether they are experiencing any of the symptoms of COVID-19 and/or whether they have been diagnosed with COVID-19.
6. What responsibility does a teleworking manager who receives confidential medical information from an employee have to safeguard that information? The ADA requires that medical information must be kept confidential and must be stored separately from the employee’s personnel file. If the manager receives confidential information while teleworking, he/she should follow the company’s normal confidentiality protocols. If that is not possible, the supervisor must safeguard the information as much as possible until it can be properly stored. Such information may not be stored electronically in a way that others can access it. Thus, it must be password protected or coded in some other way so that the employee is not identifiable.
7. If an employer requires some or all of its employees to telework because of COVID-19 or because the government requires the employer to shut down its facilities, must the employer provide a teleworking employee with the same accommodations for a disability that the employee received in the workplace? It depends. Employers should engage in the interactive process with employees to determine whether the same or different accommodations may be needed for teleworking. An employee may have equipment in his/her home that would make an accommodation unnecessary. Or, an employee who did not need an accommodation in the workplace might need one to access the technology they must now use to work from home. An accommodation that might be reasonable in the office might be an undue hardship to provide to an employee in his/her home, especially in light of the presumed temporary nature of the teleworking. The bottom line is that whether an accommodation is requested for the employer’s physical workplace or for teleworking, the employer should always engage with the employee in the interactive process to determine whether the employee has a disability and whether there is a reasonable accommodation that could allow the employee to perform the essential functions of his/her job.
8. When an employer reopens its physical buildings and recalls employees to work, must the employer grant telework as a reasonable accommodation to an employee with a disability who requests to continue teleworking? As might be expected, each situation must be assessed individually, and the employer is entitled to request medical documentation to assess whether the employee is disabled and whether such an accommodation is needed to enable the employee to perform the essential functions of his/her job. Furthermore, an employer is never required to reassign essential functions. The EEOC recognizes that there are situations where a place of business closed due to COVID-19, and the employer, therefore, temporarily excused the performance of some essential functions. But the EEOC definitively states that telework need not be provided after the business reopens if it would require the employer to excuse the employee from performing one or more essential function of his/her job. Temporarily excusing an employee from performing an essential function does not mean that the employer must permanently change the job description.
9. The EEOC has recognized that COVID-19 may cause an excusable delay in processing requests for accommodations. The employer still should be prepared to show that it addressed the requests as soon as possible given the circumstances.
Employee requests for accommodations become even more complicated during a pandemic.