Updated EEOC Guidance on COVID-19, the ADA and Other EEO Laws: What Employers Need to Know

Gibney Anthony & Flaherty, LLP

On Friday April 17, 2020 the United States Equal Employment Opportunity commission (EEOC) updated its Technical Assistance Questions and Answers about Covid-19, the American with Disabilities Act (ADA) and other EEO laws.

The EEOC update contains important clarifications for employers on issues ranging from temperature testing employees, retention and proper storage of Covid-19 related medical records, to reasonable accommodations of disabled workers who may be at greater risk from Covid-19 as well as steps employers can take to reduce the risk of pandemic related harassment due to national origin, race, or other protected characteristics.

While employers would benefit from reading the entire update, the following 10 answers given by the EEOC to employer questions are particularly helpful:

  1. When screening employees entering the workplace, employers may ask employees about symptoms of Covid-19 identified by the CDC, other public health officials, and/or reputable medical sources.
  2. As the ADA already requires that employers store all medical information about an employee separately from the employee’s personnel file, employers may store medical information related to Covid-19 in existing medical files for employees and need not create separately stored files solely for Covid-19.
  3. An employer may maintain a log of daily temperature checks of employees provided it maintains the confidentiality of the information.
  4. Employers may disclose the names of employees it learns have Covid-19 to public health officials. Similarly, a staffing agency or contractor who places an employee in an employer’s workplace may notify the employer if it learns the employee has Covid-19 so that the employer can determine if the employee had contact with anyone in the workplace.
  5. Employers may not unilaterally postpone start dates or withdraw job offers to individuals over 65 years old or who are pregnant, despite the fact that the CDC has identified them as being at higher risk of Covid-19. Employers may choose to allow telework or discuss whether the individuals would like to postpone their start date.
  6. For jobs that may only be performed in the workplace, there may be reasonable accommodations that employers may provide to employees who, due to a pre-existing disability, are at higher risk of Covid-19. This may include low cost accommodations to increase distance between the employee and others, temporary job restructuring, or modifying scheduled or shift assignments.
  7. Employees already receiving accommodation for a disability may be entitled to additional or altered accommodations that do not impose undue hardship on employers.
  8. The employer’s current circumstances arising from the pandemic is relevant in determining whether a requested accommodation would impose an undue hardship. For example, it may be more difficult to conduct a needs assessment, acquire specific items, or provide temporary assignments or remove marginal functions. Also, the sudden loss of significant revenue by the employer, and the lack of discretionary funds, may cause an otherwise reasonable accommodation request to pose an undue hardship to the employer.
  9. The EEOC recommends that when an employer reopens its workplace they should remind employees that it is against federal EEO laws to harass or otherwise discriminate against co-workers based on race, national origin, color, sex, religion, age, disability or genetic information.
  10. When an employer requires returning employees to wear protective gear, an employee with a disability may need a reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for those who communicate with employees using lip reading, or gowns for individuals who use wheelchairs. Similarly, an employee may request a religious accommodation under Title VII (e.g., modified equipment due to religious garb).  In these instances, employers must discuss the request and provide the modification or an alternative if feasible if it does not impose an undue hardship on the employer’s operation.

As legal developments related to COVID-19 are evolving rapidly on the federal, state, and local level, employers are encouraged to keep aware of additional guidance and regulations that will be issued by federal and state departments in the coming days.  As always, we encourage employers to consult with counsel with their specific questions and concerns related to Covid-19.

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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