After having just issued an update on April 9, the U.S. Equal Employment Opportunity Commission (EEOC) has now issued another update to its guidance document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws.” This has been the subject of two of our previous alerts (see The EEOC Updates its Guidance on Dealing With COVID-19 in the Workplace and OSHA and the EEOC Weigh in on COVID-19 in the Workplace).
The EEOC discusses when an undue hardship may permit an employer to deny an accommodation requested by an employee. The EEOC defines an undue hardship as meaning “significant difficulty or expense”. In some instances, according to the EEOC, an accommodation that would not have posed an undue hardship before the coronavirus pandemic may pose one now.
The EEOC explains that in determining whether or not “significant difficulty” exists, the employer must consider the facts of the particular job and workplace. For example, it may be more difficult in this pandemic to conduct a needs assessment, to acquire certain items, or to deliver items, especially for employees who are working remotely. Also, it may be significantly more difficult to provide temporary assignments or readily hire temporary workers for specialized positions.
Similarly, the determination of when “significant expense” may pose an undue hardship also depends on the facts of the particular job and workplace. The EEOC notes that before the pandemic “most accommodations” did not pose a significant expense when measured against an employer’s overall budget and resources. Because of the pandemic, however, it is relevant to consider the sudden loss of some or all of an employer’s income stream. It is also relevant to consider the amount of discretionary funds the employer has available compared to other expenses, and whether there is an expected date by which restrictions on the employer’s operations will be lifted or new ones added or substituted.
Here are other highlights of the updated EEOC guidance:
- The EEOC offers guidance on how employers may know the kinds of steps they can take, consistent with the ADA, to screen employees for COVID-19 when entering the workplace after stay-at-home orders and other restrictions are lifted.The ADA allows employers to ask questions related to disability and to conduct medical exams if they are “job-related and consistent with business necessity.” This standard is met if it is necessary to exclude employees with a medical condition that would pose a “direct threat to health or safety.” Importantly, the EEOC states that employers will be complying with the ADA if screening “is consistent with advice from the CDC and public health authorities for that type of workplace at that time.” Examples include taking temperatures of employees, asking questions about symptoms, or requiring self-reporting of everybody entering the workplace.
- If the employer requires that returning workers wear protective gear and engage in infection control practices, and an employee with a disability needs a related reasonable accommodation or a religious accommodation, the employer should discuss the request and provide a modification or an alternative if it is feasible and is not an undue hardship on the operation of the employer’s business. Examples of possible situations cited by the EEOC include the need for non-latex gloves, modified face masks for those who communicate with employees who use lip reading, or modified equipment due to religious garb.