The coronavirus pandemic has created myriad grey areas and confusion for even the most agile and adaptive employers. Business owners and managers attempting to adapt to the “new normal” face daily questions and concerns about employee leaves and benefits related to COVID-19, which are impacted by ever-changing government guidance, executive orders, and employment laws.
On September 8, 2020, a revised publication by the U.S. Equal Opportunity Employment Commission (“EEOC”) added to the latest round of updated government guidance. This new guidance addresses some of the most common questions by employers concerning the intersection of the Americans With Disabilities Act (“ADA”), the Rehabilitation Act, EEO laws, and the COVID-19 pandemic. Below are key highlights from the EEOC’s guidance.
COVID-19 Testing and Screenings
Employers have been forced to balance workplace safety and employee privacy concerns amidst workplace re-openings and implementing various employee screening mechanisms. Recognizing these difficulties, the EEOC issued updated guidance for business owners and managers regarding COVID-19 screening and testing in the workplace:
1. Employers may administer COVID-19 tests to employees if the desire to do so is job-related and consistent with a business necessity. This standard is met where screening is necessary to determine if employees entering the workplace have been infected with the virus, which would pose a direct threat to the health and safety of others. Employers may administer COVID-19 tests prior to employees entering the workplace or periodically based on business operations. Employers should take measures to ensure that any tests administered are accurate and reliable according to current standards set forth by the CDC, FDA, and other public health authorities.
- However, the EEOC warns that employers should consider the incidence of inaccurate test results, and that a negative test can occur if the employee has been exposed, but did not have a detectable level of the virus at the time of testing.
- The EEOC reiterated that antibody testing is a medical examination under the ADA and should not be used to make decisions about permitting employees in the workplace.
2. Employers may continue to ask all employees who physically enter the workplace if they have a diagnosis of or symptoms consistent with COVID-19 (e.g., fever, chills, shortness of breath, or other symptoms identified by the CDC), and send home any employees who have a diagnosis or symptoms of the virus. But this same screening should not be implemented for employees who are teleworking and fully remote. Employers should also be careful to avoid singling out a specific employee to conduct COVID-19 screening, unless the employer has a “reasonable belief based on objective evidence” that the employee might have COVID-19. Employers are entitled to know why an employee is absent from work. This is not a disability-related inquiry that is prohibited under the ADA. Similarly, if an employer is aware that an employee has recently traveled (for business or for leisure), the employer may ask whether the employee visited a COVID-19 hot spot, as identified by the CDC.
3. Employers have the right to bar an employee from entering the workplace if he or she refuses to cooperate with a COVID-19 screening protocol. Employers should ask and document the reason why an employee refuses to cooperate, and are encouraged to inform the employee that COVID-19 screening is done to ensure the health and safety of the workplace.
Confidentiality of Employee Medical Information
The EEOC also addressed several questions relating to employer responsibilities for employee medical information gathered in connection with COVID-19 screening and testing. As always, any employee medical information (including information relating to COVID-19 symptoms and diagnoses) is considered confidential, and should be treated accordingly. In addition, employers should keep the following in mind:
- A manager who learns that an employee has a diagnosis of or symptoms consistent with COVID-19 must keep such information confidential. However, the manager may report this information to appropriate employer officials so that the employer may take proper action consistent with public health guidance.
- An employee does not violate the ADA when he or she reports to an employer that a co-worker is experiencing symptoms consistent with COVID-19. However, the employer must be careful not to disclose the identity of the employee who is suspected or confirmed to have COVID-19 to others, except for Human Resources or upper level management who have a legitimate business need to know such information.
- If an employee who normally reports to the physical workplace is teleworking due to self-quarantine or if they are experiencing COVID-19 symptoms, the employer may disclose to other employees that the employee is teleworking; however, the employer may not disclose the reason.
- It is not a violation of the ADA for an employer to designate a representative to interview an employee who is suspected or confirmed to have the virus about who the employee had direct contract with at work for the purpose of notifying impacted employees about potential exposure.
Teleworking and Reasonable Accommodation Requests
Some of the most prevalent and difficult questions in the current work climate involve employee accommodation requests related to COVID-19. As before the pandemic, employee requests for reasonable accommodations are very fact- and situation-specific. The EEOC provided the following general guidance and reminders on this evolving subject:
- Employers may ask employees in advance of their return-to-work date if any employee may require accommodations for a disability—related to COVID-19 or otherwise—once they return to the workplace.
- Employees who have been teleworking during the pandemic are not automatically entitled to continue teleworking when the employer calls them back to the workplace. The key consideration for an employee’s accommodation request is whether there is “a disability-related limitation that requires teleworking,” as opposed to other forms of reasonable accommodation. The employer should continue to follow the ADA by engaging in the interactive process with the employee to understand any disability-related accommodation requests and determine whether such requests are reasonable or will pose an undue hardship on the business.
- If an employer altered an employee’s essential job functions during a period of teleworking during the pandemic, this does not mean that the employer permanently changed the employee’s essential job functions. But employers should be mindful that any pandemic-related workplace closures during which employees teleworked may have changed the undue hardship analysis by demonstrating that employees are capable of successfully teleworking.
- Although the pandemic may result in extraordinary circumstances that delay discussions as part of the interactive process with respect to an employee’s accommodation request, employers must continue to respond to requests for reasonable accommodations as soon as possible.
Following this updated EEOC guidance, business owners, managers, and HR professionals should continue to stay current on orders and recommendations from public health authorities, including the CDC, and applicable government orders and regulations. Employers should also keep in mind that many workplace issues relating to the pandemic are fact- and situation-specific, which should be handled carefully and consistently with the ADA and other applicable employment laws.