EEOC Issues "Return To Work" COVID-19 Guidelines For Employers

MoFo Employment Law Commentary (ELC)
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MoFo Employment Law Commentary (ELC)

On April 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) again revised its guidance for employers dealing with the COVID-19 pandemic, this time providing advice involving disability accommodations under the Americans with Disabilities Act (ADA) and claims brought under Title VII of the Civil Rights Act (prohibiting discrimination on the basis of race, color, national original, religion and sex) and under the Age Discrimination in Employment Act. These guidelines apply to employees currently working in essential businesses permitted to remain open under the various stay-at-home orders in effect around the country and to employees who will return to work as the stay-at-home orders are lifted. Here are the key points:

ADA Issues

 1.    During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may the employer ask for information to determine if the condition is a disability?

Yes, if it is not obvious or already known. The employer may request medical documentation sufficient to determine whether the employee’s “disability” is covered by the ADA and whether the requested accommodation is required (including how the proposed accommodation will enable the employee to continue performing the “essential functions” of his or her position). Possible questions might include (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether some other form of accommodation could effectively address the issue, and (4) whether the proposed accommodation will enable the employee to continue performing the essential functions of his or her position.

2.    If there is some urgency to providing an accommodation or the employer has limited time to discuss the request during the pandemic, may the employer provide a temporary accommodation?

Yes, during the pandemic. If the employer chooses to forgo or shorten the exchange of medical information discussed above (the interactive process), the employer may simply grant the request (with or without an end date). After governmental restrictions are partially or fully lifted, the need for accommodations may change, and there may be more requests for short-term accommodations. At that time, the employer may engage in the interactive process and fix an end date for the accommodation based on changing public health directives. These considerations could also apply to employees who have disabilities exacerbated by the pandemic.

3.    May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace?

Yes, for employees with known disabilities. The employer may inquire about accommodations the employees believe they may need when they return to the workplace and otherwise begin the interactive process.

4.    Based on the circumstances of the pandemic, may a requested accommodation be denied because it poses an undue hardship?

Yes, provided the employer can establish that the undue hardship is a “significant difficulty or expense.” For example, it may be significantly more difficult to provide temporary assignments. And budget concerns may be considered in light of the employer’s loss of income during the pandemic. Although an employer cannot reject a proposed accommodation simply because the accommodation costs money, the employer may consider its current budgetary constraints in reaching its conclusion. When possible, another no-cost accommodation should be sought.

Civil Rights Issues

 5.    How can employers try to reduce and address workplace harassment that may arise as a result of the pandemic?

Employers should expressly communicate to their workforces that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic such as national origin or race. Practical anti-harassment tools are provided by the EEOC and can be found here and here.

General Return to Work Issues

 6.    With regard to the ADA, as government stay-at-home orders are modified or lifted, how will employers know what steps they can take to screen employees for COVID-19 when entering the workplace?

The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity, and employers are permitted to exclude employees with a medical condition that would pose a direct threat to health or safety. An employer’s conduct (for example, taking temperatures and asking about other symptoms) will be permitted by the ADA so long as that conduct is consistent with advice from the CDC and public health authorities for that type of workplace at that time.

7.    If an employer requires returning workers to wear personal protective gear and engage in infection control procedures, must the employer grant an employee’s request for modification of the requirements?

It depends. If an employee asks for an accommodation for a disability or religious reasons, the employer should accommodate the request whenever it can reasonably do so (that is, when the requested accommodation is feasible and not an undue hardship on the employer’s business operations). Examples provided by the EEOC for disability accommodation include non-latex gloves, modified face masks for interpreters or others who communicate with an employee who lip reads, or gowns designed for individuals who use wheelchairs. For religious accommodation, the EEOC gives the example of modified equipment due to religious garb. The EEOC acknowledges that these are just examples. The EEOC states that the employer and employee should discuss the matter, and the employer may provide an alternative if it is feasible and does not pose an undue hardship for the employer.

Note: Although the EEOC has stated that an employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (regular handwashing and social distancing), there are other privacy issues to consider. Some of these additional issues are discussed here.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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