The EEOC Further Updates Its COVID-19 Guidance

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Yesterday, the US Equal Employment Opportunity Commission updated its technical assistance document, What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws.
 

The update incorporates information from other Commission resources and addresses common questions about COVID-19 and federal equal employment opportunity laws.

Here are the highlights:

Disability-Related Inquiries and Medical Examinations

Employer-Mandated COVID-19 Testing

In March, the EEOC announced that employers may require employees to submit to COVID-19 tests when evaluating their initial or continued presence in the workplace. In the update, the EEOC explains its position further.

In brief, employers should ensure that the required COVID-19 tests are accurate and reliable according to the FDA, CDC, and other public health authorities. Also, employers should remember that a negative test result means that the tested employee didn’t have detectable COVID-19 when tested; not that the employee won’t acquire COVID-19 later.

COVID-19 Inquiries: Generally

The EEOC’s new guidance reiterates that employers may ask all employees set to enter the workplace if they have COVID-19, symptoms associated with it, or if they’ve been tested for the virus. Likewise, employers may exclude from the workplace employees with COVID-19 or its associated symptoms. That’s because those individuals pose a direct threat to the health and safety of others.

That rationale, however, is inapposite to employees who work remotely and aren’t physically interacting with co-workers, customers, or others. Regarding those employees, COVID-19 inquiries generally aren’t permitted.

What if an employer is concerned just about one employee? May the employer elect only to screen her for COVID-19?

It depends. According to the EEOC, if an employer wishes to screen just one employee for COVID-19, it must have a reasonable belief, based on objective evidence, that she might have the disease.

What about family members? May an employer ask employees set to enter the workplace whether they have a family member who has COVID-19 or any of its associated symptoms?

No, says the EEOC. That would violate the Genetic Information Nondiscrimination Act (“GINA”), which prohibits employers from asking employees medical questions about family members. GINA, however, doesn’t prohibit employers from asking employees whether they’ve had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the illness.

What may an employer do, under the ADA, if an employee refuses to submit to COVID-19 screening?

That employee, according to the EEOC, may be barred from the workplace. But, to gain the employee’s cooperation, the employer may wish to ask the employee to explain her refusal. Perhaps the employer can provide information or reassurance that the screening is intended to promote safety and is consistent with the CDC’s health screening recommendations.

During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick?

According to the EEOC, the answer is “yes.” During the pandemic, those inquiries are permissible.

Consider another scenario: An employee is absent from work. May the employer request and explanation?

Again, the answer is “yes.” As the EEOC explains, “[a]sking why an individual did not report to work is not a disability-related inquiry. Employers are always entitled to know why an employee has not reported to work.”

When an employee returns from travel during the pandemic, must the employer wait until the employee develops COVID-19 symptoms to ask where the employee traveled?

No. Questions about where an employee has traveled, like questions about why the employee was absent from work, aren’t disability-related. If the CDC or state or local public health officials recommend that people who visit specific locations remain at home for a certain period of time, an employer may ask whether employees are returning from those locations, even if the travel was personal.

Confidentiality of Medical Information

What if a manager learns that an employee has COVID-19, or symptoms associated with the illness? The manager knows that she must report it, but is worried about violating the ADA’s confidentiality mandate. What should she do?

Under the ADA, of course, employers must keep all employee medical information confidential. Information that an employee has symptoms, or a diagnosis, of COVID-19, is medical information. That doesn’t, however, prevent the manager from reporting it to appropriate employer officials so that they can take actions consistent with CDC and other public health authority guidance.

The question is what information to report: is it the fact that an employee -- unnamed -- has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the employee’s identity will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people to whom they disclose the employee’s identity.

The ADA doesn’t bar the employer from alerting co-workers, without revealing the employee’s identity, that they may have had workplace exposure to someone with COVID-19. In the words of the EEOC:

For example, using a generic descriptor, such as telling employees that ‘someone at this location’ or ‘someone on the fourth floor’ has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, co-workers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the employee’s identity should be directed to hold the information in confidence. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.

What if an employee learns that a co-worker who reports to the workplace has symptoms associated with COVID-19? Does the ADA’s confidentiality mandate prohibit the employee from disclosing it to her supervisor?

No. The ADA doesn’t prevent the employee from telling her supervisor about a co-worker’s symptoms. After learning about the situation, the supervisor should contact the appropriate management official to discuss next steps.

An employer knows that an employee is teleworking because the employee is self-quarantining due to COVID-19 or symptoms associated with it. May the employer tell staff that the employee is teleworking, without explaining why?

“Yes,” says the EEOC. If staff must know how to contact the employee, and the employee is working remotely, the employer may disclose that the employee is teleworking without saying why. Likewise, if an employee is on leave rather than teleworking because the employee has COVID-19, its associated symptoms, or any other medical condition, the employer may disclose that the employee is on leave, but not the reasons for the leave.

How are supervisors and managers working remotely to keep medical information confidential?

If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and can follow the employer’s existing confidentiality protocols, the manager or supervisor must do so. If that’s not feasible, the manager or supervisor still must safeguard medical information to the greatest extent possible until she can properly store it.

Thus, notepads, laptops, or other devices should not be left where others can access protected information. Similarly, documentation must not be stored electronically where others can access it. Also, managers and supervisors may wish to use employee initials or another code to further ensure confidentiality.

Reasonable Accommodation

May an employer now invite employees to request reasonable accommodations that they may need in the future when they return to the workplace?

Yes. And, if employees make advance requests, employers may begin the "interactive process" -- the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it later, the employer must consider the request at that time.

When an employer requires some or all of its employees to telework because of COVID-19 or government officials require the employer to shut down its facility and have workers telework, must the employer give a teleworking employee the same reasonable accommodations for disability under the ADA or the Rehabilitation Act that it provides to the employee in the workplace?

If the employee requests an accommodation, the employer and employee should discuss what the employee needs and why, and whether the same or a different accommodation could suffice in the home setting. For example, an employee may already have certain items or arrangements at home that moot the need for an accommodation. Also, the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. A reasonable accommodation that is feasible and does not pose an undue hardship in the workplace might pose one when considering circumstances, such as the place where it is needed and the reason for telework.

The EEOC encourages employers and employees to be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. Providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.

Assume that an employer requires employees to telework to slow or stop COVID-19’s spread. When the employer reopens the workplace and recalls employees to the worksite, must the employer automatically grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement?

“No,” says the EEOC. When an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates it. If there’s no disability-related limitation that requires telework, the employer doesn’t have to provide that accommodation. Similarly, if there is a disability-related limitation, but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

If an employer permits employees to telework due to COVID-19 and is choosing to excuse employees from performing one or more essential job functions, it need not grant a request -- after the workplace reopens -- to continue telework as a reasonable accommodation, if it would require continuing to excuse employees from performing an essential function. The ADA never mandates that an employer eliminate an essential function as an accommodation.

The fact that an employer temporarily excused performance of one or more essential functions when, to promote safety, it closed the workplace and enabled employees to telework, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. Those are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties, and then evaluating any requests for continued or new accommodations.

Assume that, before the COVID-19 pandemic, an employee with a disability had requested, and demonstrated a need to, telework as a reasonable accommodation. The employer, however, denied the request due to concerns that the employee wouldn’t be able to remotely perform her job’s essential functions. The employee, therefore, continued to report to the workplace, until the COVID-19 pandemic ensued, when as a safety measure the employer required all employees to telework. After the COVID-19 crisis subsides and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. May the employer say no?

It depends. The temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether the employee could satisfactorily perform her job’s essential functions while working remotely. And the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible and cooperative interactive process going forward.

Might the pandemic result in excusable delays during the interactive process?

Yes. COVID-19’s rapid spread has disrupted normal work routines and may have caused unexpected or increased requests for reasonable accommodation. Employers and employees should address those requests as soon as possible. The EEOC recognizes, however, that the extraordinary circumstances of the COVID-19 pandemic may cause delays. Employers and employees should consider using interim solutions to enable employees to keep working as much as possible.

Furloughs and Layoffs

What are additional EEO considerations in planning furloughs or layoffs?

Federal law prohibits employment discrimination based on race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity.

If an employer is choosing to offer flexibilities to other workers, may older comparable workers be treated less favorably based on age?

No. If an employer is allowing other comparable workers to telework, it must not treat older workers less favorably based on their age.

These are unprecedented times, raising employment law issues that are difficult to navigate. Although the EEOC has anticipated many issues and offered advice on solutions, new challenges will likely arise that will necessitate further updating of their guidance.

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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