On April 9, 2020, the Equal Employment Opportunity Commission (EEOC) issued its updated Technical Assistance Questions and Answers titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” addressing several questions that have arisen since the beginning of this national emergency and reminding us that even during a pandemic, employers need to be cognizant of their obligations under the ADA and other EEO laws. A summary of the questions and answers is provided below.
A more comprehensive guide from the EEOC can be found in “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act,” which was drafted during the prior H1N1 outbreak and last revised on March 21, 2020, to address COVID-19.
Medical questions, testing and records under the ADA
The EEOC clarified that employers may ask employees if they are experiencing any symptoms of COVID-19 as identified by the Centers for Disease Control and Prevention and other governmental health authorities. As the responses to these questions are considered medical information under the ADA, documentation of these responses must be maintained by employers as confidential medical records. Employers should take care to limit their inquiries to questions such as, “Are you experiencing any of the following symptoms of COVID-19, including fever, difficulty breathing, cough, etc.” and avoid open-ended questions such as, “What are your symptoms?” that may result in employees disclosing unrelated and unnecessary medical information to their employers. The EEOC also notes the expansion of original symptoms to include loss of smell or taste as well as nausea, diarrhea and vomiting and suggests checking with the CDC and other reputable medical sources for updated lists of emerging symptoms.
Employers may, but are not required to, create new medical files to store an employee’s COVID-19 related information, including an employee’s statement that he or she has the disease, and any documents regarding requests for leave under the FFCRA. The EEOC reiterated that “the ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information.”
Employers may also take employees’ temperatures when they report to work. Again, any documentation of an employee’s temperature must be maintained as a confidential medical record. Employers may send employees home from work and require them not to report to work if they are experiencing any symptoms of COVID-19. Similarly, employers may require the employee to provide documentation from a medical provider that the employee is fit for duty in order to return to work after an illness, which the EEOC has specified can be a statement that the employee does not have COVID-19.
Hiring and onboarding during the pandemic
To ensure the safety of the employer’s existing workforce, the EEOC explained that employers may ask individuals who have been extended conditional offers of employment whether they are experiencing symptoms of COVID-19 as long as employers do so for each person offered the same type of job. Employers may also take a job applicant’s temperature as part of a post-offer pre-employment medical exam. Individuals with conditional offers of employment may have their start dates pushed back by employers if they have COVID-19 or are experiencing symptoms of COVID-19.
Interestingly, the EEOC explained that if an individual has an immediate start date but has COVID-19 or symptoms of COVID-19, the employer may withdraw the offer of employment because the individual cannot safely enter the workplace. However, the EEOC stated that if an individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19, an employer may not delay the start date or withdraw an offer because “being at a greater risk does not justify unilaterally postponing the start date or withdrawing a job offer.” The EEOC encourages employers to discuss telework and have open discussion allowing the individual to make a personal decision about delaying the start date.
The EEOC advised that employers must consider reasonable accommodations for an employee who has a preexisting disability that puts the employee at a higher risk for COVID-19 when telework is not an option. For example, if an employee requests an accommodation that would limit the employee’s exposure in the workplace, the employer may consider “low-cost solutions achieved with materials already on hand or easily obtained … [including] changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.” The EEOC encouraged employers to be flexible and creative. Other accommodations may be temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment.
Employers should also be mindful of employees with pre-existing mental illnesses or disorders that may be exacerbated by the pandemic and thus may require reasonable accommodations absent undue hardship. As with any accommodation request, the employer may ask questions to determine whether the condition constitutes a disability, discuss how the employee’s requested accommodation will assist him or her to keep working, and be open to alternative accommodations to assist the employee in performing the functions of the job.
Finally, employers should be aware that employees already receiving reasonable accommodations may need different or adjusted accommodations if they are teleworking or have an altered worksite environment. Employers can ask whether the same or a different disability is the basis for this new request and why an additional or adjusted accommodation is needed. As with any request for accommodation, the employer should engage in the interactive process with the employee, request medical support if needed, and document the discussions.
Pandemic-related harassment and discrimination
Lastly, the EEOC reminded employers that they can help reduce the chance for harassment and discrimination by “by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.” The EEOC has created several tools for employers to use to prevent, address and mitigate harassment and discrimination and provided links to them in the Technical Assistance Questions and Answers. Employers should not wait until employees return to work in brick-and-mortar buildings to communicate anti-discrimination and anti-harassment expectations to their employees.
If you have questions about your obligations under the various laws enforced by the EEOC and how they are impacted by the COVID-19 pandemic, please contact one of the attorneys in our Employment & Labor practice group.