After reversing course on prior guidance, the EEOC has issued new guidance stating that excluding workers who have underlying medical conditions recognized by the Centers for Disease Control (the “CDC”) as putting them at “higher risk for severe illness” if they contract COVID-19 violates the Americans with Disabilities Act (the “ADA”) unless it is established that the disability poses a “direct threat to self” that the employer cannot mitigate or eliminate with a reasonable accommodation. In defending against a claim of disability discrimination, employers using “direct threat” as an affirmative defense must demonstrate that the employee has a disability that poses a “significant risk of substantial harm.”

The EEOC emphasized that the ADA’s direct threat requirement is a “high standard” that can only be met after an exhaustive individualized assessment based on “reasonable medical knowledge and/or the best available objective evidence.” The assessment must be based on the employee’s own disability, such as whether it is well-controlled, rather than the disability in general. The assessment also must include a thorough analysis of several factors, including: 1) the time-period of the risk; 2) the nature and severity of the potential harm to the employee; 3) the probability that the potential harm will occur; and 4) the immediacy of the potential harm.

With respect to COVID-19, employers also should include in their assessment the risk factors unique to their workplace, such as the effectiveness of their infection control practices, and how widespread the pandemic is in their area.  Finally, even if a direct threat to self is conclusively established, employers can only exclude affected workers if the significant risk of substantial harm cannot be mitigated or eliminated by a reasonable accommodation that does not pose an undue hardship.

The Q&A’s below provide an analysis of current and prior EEOC’s COVID-19/ADA guidance:

Question: If an employer is aware that an employee has an underlying medical condition that would put them at risk of serious complications from COVID-19 if they return to work, but the employee has not requested a reasonable accommodation, is the employer obligated to act?

Answer: No. Under these circumstances, the ADA does not require employers to be proactive in taking any action, and cautions against taking adverse actions based on their knowledge of an employee’s pre-existing medical condition. In addition, employers trying to be proactive in protecting their workers from COVID-19 complications could expose themselves to “perceived as disabled” claims by affected workers.

Question: How can employees who have an underlying medical condition that places them at higher risk for severe illness from COVID-19 communicate a need for a reasonable accommodation?

Answer: Employees or their doctors can communicate, “in conversation or in writing,” that they need a change or reasonable accommodation related to an underlying medical condition. Employees are not required to use the magic words “reasonable accommodation,” or even reference the ADA, to trigger the interactive process. Nevertheless, employers can ask questions and request medical documentation to determine if the employee has a disability that the employer could accommodate.

Absent an undue hardship, an accommodation could include the elimination or substitution of a marginal job function, a temporary modification of a work schedule, leave, telework, reassignment to a different job that permits telework, and reassignment to a different location that may be safer for the employee. Employers should ensure that they are following consistent practices in permitting all similarly-situated employees to telework, and not denying the same flexibility to workers who ask to telework as a reasonable accommodation.

Currently, the CDC has determined that people 65 years and older and people with certain underlying medical conditions, such as asthma, serious heart conditions, diabetes, obesity, liver and chronic kidney disease, and those who are immunocompromised, are at a higher risk for severe illness from COVID-19.

Question: How can employers mitigate or eliminate a “direct threat to self” for an employee?

Answer: In addition to the potential accommodations discussed above, employers can provide additional or enhanced Personal Protective Equipment (PPE), such as gowns, masks, gloves, individual hand-sanitizer, or other precautions beyond what they are providing to other employees returning to work. The EEOC also suggests erecting “protective” barriers or increasing the space between the affected employee and others.

For all employees returning to work, disabled or not, employers should enforce strict infection control practices. These can include, taking temperatures, requiring employees to take their own temperatures, ensuring that employees return to work only if they are COVID-19 symptom free, social distancing, handwashing, regularly disinfecting surfaces, requiring PPE, and limiting the number of employees in public spaces, like lunch and conference rooms, or temporarily closing all communal spaces.

Question: Can employers ask all employees physically entering the workplace during the COVID-19 pandemic whether they have the virus or symptoms associated with the virus?

Answer: Yes. Employers also may ask employees who are physically entering the workplace if they have been tested for COVID-19 to determine whether the employees pose a health or safety threat to the workplace. In contrast, employees who are teleworking and do not pose a physical threat, should not generally be asked such questions.

Question: Can employers exclude an employee from the workplace if the employee refuses to answer questions related to their exposure to COVID-19?

Answer: Yes. Employers may exclude employees who refuse to answer questions about whether they have COVID-19, have been exposed to COVID-19, have been tested for COVID-19, or have symptoms associated with COVID-19. In addition, employers can exclude employees from the workplace if they refuse to have their temperatures taken. Employers should communicate to all employees that their medical information will be kept confidential and document any employee’s refusal to cooperate.

Question: Can employers single out employees for COVID-19 related questions?

Answer: Yes. If a particular employee exhibits symptoms associated with COVID-19, such as a persistent, hacking cough, it would be reasonable for an employer to ask about potential exposure to determine whether the employee poses as health or safety risk to the workplace. Take care to be diligent about documenting the symptoms that triggered the individual inquiry and ensure that the symptoms are consistent with the latest guidance on evolving symptoms associated with COVID-19 from the CDC, public health authorities, reputable medical sources, and the EEOC’s own examples. Updated symptoms beyond fever, cough, sore throat, shortness of breath, and chills now include a loss of smell or taste, and gastrointestinal problems, such as nausea, diarrhea, and vomiting.

Question: Can employers ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?

Answer: No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. Instead, ask whether an employee has had contact with anyone who the employee knows has been diagnosed with COVID-19, or who may have symptoms associated with the disease.

Question: What information can an employer disclose about an employee who has symptoms of COVID-19 or has a positive diagnosis?

Answer: The ADA requires employers keep medical information confidential, even if it is not disability related. A supervisor, co-worker, or staffing agency, who learns about an employee’s positive diagnosis, or COVID-19 symptoms, can and should disclose this information to the employer.  But, employers are not permitted to disclose the name and medical condition of an affected employee, except on a very strict “need to know” basis. An employer should designate an authorized individual to receive this confidential information. This designee should interview the affected worker to confirm a diagnosis and obtain a list of employees with whom the affected employee had workplace contact. The employer should then notify employees of potential exposure to COVID-19, and take other actions consistent with guidance from the CDC and public health authorities.

Similarly, if an employer knows that an employee is teleworking because of COVID-19 symptoms or a diagnosis, the employer can communicate to the workforce, for business continuity purposes, that the employee is teleworking. The employer should not disclose that the reason is COVID-19. The CDC also advises employers to maintain the confidentiality of people with confirmed COVID-19.

Question: Can employers store an employee’s COVID-19 information in their existing medical file?

Answer: Yes. Employers do not need to create a separate file to store medical information related to COVID-19. But, employers should continue to store all medical information separate from personnel files. Employers are permitted to maintain a log of daily temperature checks, but must also keep this information confidential.

Question: How do employers who are working remotely and are receiving COVID-19 medical information about employees comply with the requirement of storing medical information in a separate file?

Answer: Employers who are working remotely should make every effort to safeguard medical information to the greatest extent possible until they can properly store it. Documentation must not be stored electronically where other people would be able to access it, and employee names should be coded or otherwise concealed to ensure confidentiality.

Question: Is COVID-19 a disability?

Answer: At this time, it is unclear whether COVID-19 is or could be a disability under the ADA.

Questions: Do employers have to provide accommodations, such as leave or telework, to employees who say they are at higher risk of complications from COVID-19, but who do not have a disability?

Answer: No. Employers are not required to accommodate employees who are not disabled. However, as discussed above, if an employer verifies that the employee has an underlying medical condition that puts the individual at higher risk of complications, or exacerbates their current condition, an accommodation that does not pose an undue hardship should be discussed as part of the interactive process.

Similarly, if a non-disabled employee is asking to telework because they have a family member at home who is disabled and would be at high risk of complications, an employer is not required to accommodate the employee.

Question: Can employers require employees to physically return to work after the COVID-19 crisis has ended, even if they provided telework as an accommodation?

Answer: Yes. If an employer is permitting telework because of COVID-19 and chooses to excuse an employee from performing one or more essential functions, the employer can later deny an employee’s request to continue telework as a reasonable accommodation after the crisis has ended. The ADA does not require an employer to eliminate an essential function as an accommodation for an individual with a disability. Even if an employer temporarily excused performance of one or more essential functions during the COVID-19 crisis to enable employees to telework, it does not mean that the employer has permanently changed a job’s essential functions, or that telework is a feasible accommodation and does not pose an undue hardship.

Question: If a disabled employee had a telework request denied prior to the COVID-19 pandemic, but the employer subsequently permitted the employee to telework during the crisis, does the employer have to keep the telework arrangement for that employee post-crisis?

Answer: No. If the employer had previously denied the telework request because it posed an undue hardship or required the employer to eliminate an essential job function, the employee should return to the workplace. However, if the employee was able to perform all of their job functions remotely and doing so did not pose an undue hardship to the employer, a telework arrangement should be examined as part of the interactive process if the employee renews the telework request post-crisis. If there is an alternative reasonable accommodation that effectively addresses the disability-related limitation, the employer may choose the alternative accommodation. 

As noted above, employers should ensure that they are following consistent practices in permitting all similarly-situated employees to telework and not denying the same flexibility to workers who ask to telework as a reasonable accommodation.

Question: Do employers have to provide additional accommodations to disabled employees who were already receiving one prior to the crisis?

Answer: Disabled employees may be entitled to additional or altered accommodations, absent any undue hardship. Employers should be flexible and creative in finding low-cost solutions to accommodate employees in the workplace, such as designating one-way aisles, using plexi-glass as a barrier, or other accommodations that reduce the chances of exposure. Employers also may have to provide additional or changed accommodations to disabled employees who are teleworking. As with all requests for accommodations, employers should discuss with the employee how the accommodation would assist in enabling them to keep working and explore alternative effective accommodations. Employers are certainly entitled to request medical documentation if needed, although obtaining updated medical information may be delayed due to the crisis.

Question: Can employers ask employees if they will need future accommodations when they return to the workplace?

Answer: Yes. In assessing whether employees will need accommodations in order to return to work post a COVID-9 absence or workplace closure, employers can inquire now about any future accommodations and commence the “interactive process.” The EEOC suggests that employers focus the discussion on whether the impairment is a disability and the reasons that an accommodation is needed.

Question: Is the COVID-19 pandemic relevant in assessing whether a requested accommodation poses an undue hardship?

Answer: Yes. An undue hardship is a significant difficulty or expense. Employers whose overall budgets, income streams, discretionary spending, and resources have been adversely impacted by the crisis may find that an accommodation that previously would not have posed an undue hardship now poses a significant expense. Employers should weigh the cost of an accommodation against current financial constraints, such as increased operating expenses due to new requirements for re-opening or restrictions on operations, and consider creative solutions, including no-cost or very low-cost accommodations.

Employers can also consider whether current circumstances create significant difficulty in acquiring or providing certain accommodations, considering the particular job and workplace. The EEOC has cited the following examples of significant difficulty in providing accommodations caused by the pandemic: 1) conducting a needs assessment; 2) acquiring certain items, and delivering them to employees who may be teleworking; 3) providing employees with temporary assignments; 4) removing marginal functions; and 5) hiring temporary workers for specialized positions.

The EEOC will continue to update its on-line resources periodically, as the pandemic crisis continues to evolve. In addition, employers should continue to follow updated guidance from the Centers for Disease Control and Prevention (CDC), state and local health departments, and the FDA for testing information. For guidance relating to your company’s workforce specific questions, consult your legal counsel.