This alert incorporates the guidance issued by the Equal Employment Opportunity Commission (EEOC) on March 19, 2020, in its publication on “Pandemic Preparedness in the Workplace and Americans with Disabilities Act,” and updated on March 21, 2020, along with guidance issued in an EEOC webinar conducted on March 27, 2020, and other EEOC FAQ updates through September 8, 2020.
We will continue to update this alert as the EEOC issues additional guidance on COVID-19 preparedness. Going forward, the sections of this alert that have been updated will be marked with the date our team issued the updated information so that you can keep track of the changes.
In light of the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has revised its 2009 publication on “Pandemic Preparedness in the Workplace and Americans with Disabilities Act (ADA),” which it issued originally during the H1N1 outbreak. The publication provides employers with technical assistance regarding Titles I and V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, and pandemic planning for the workplace.
On March 27, 2020, the EEOC conducted a webinar addressing common questions it had received regarding appropriate measures to take in light of the Guidance. The EEOC has continued to periodically revise the Q&A portion of its Guidance, issuing updates on April 9, April 23, May 5, May 7, June 11, June 17 and September 8. The EEOC’s stated purpose in revising the Guidance is to assist employers in implementing strategies to navigate the workplace impact of COVID-19, consistent with applicable laws and regulations. Most of the publication written during the H1N1 outbreak remains relevant, but it now includes additional examples and information tailored to COVID-19.
On March 11, 2020, the Centers for Disease Control and Prevention (CDC) declared COVID-19 a pandemic and alerted employers that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace. The CDC directed employees who become ill with symptoms of COVID-19 to leave immediately. The EEOC guidance makes it clear that the ADA does not interfere with employers following these directions.
Additionally, the guidance allows employers to make disability-related inquiries or require a medical examination of a current employee who will physically enter the workplace, when the employer reasonably believes that an employee’s medical condition poses a “direct threat,” defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The EEOC also opines that an employee with COVID-19 poses a “direct threat” and may be ordered to go home.
Nevertheless, the EEOC cautions against subjective preconceptions or irrational fears and asks employers to undertake an objective and factual assessment of any potential direct threat in the workplace. The EEOC’s regulations identify four factors to consider: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm.
Screening and Testing
The CDC and state/local health authorities have acknowledged the community spread of COVID-19. As a result, employers can ask COVID-19 related questions of applicants and employees to assess the presence of the threat in the workplace.
The revisions to the guidance provide additional flexibility for employers to make disability-related inquires or require medical examinations of asymptomatic employees during a pandemic. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. Employers with objective information from public health advisories can use that to identify employees who are at higher risk of influenza complications because of the potential direct threat posed to the workplace.
Accordingly, in order to protect the workforce from the pandemic, employers are allowed to seek medical information from employees who call in sick, require employees experiencing flu-like symptoms to stay home, and take the body temperatures of employees in the workplace.
[Updated September 9, 2020] Under the Genetic Information Nondiscrimination Act, an employer cannot ask employees who are physically coming into work whether they have family members who have COVID-19 or symptoms of COVID-19. However, employers are permitted to ask whether employees have had contact with anyone who has tested positive for COVID-19 or who may have symptoms associated with the disease. An employer also is permitted to ask an employee who has not reported for work the reason for the absence.
[Updated September 9, 2020] The CDC and state or local health officials may recommend that individuals returning from travel to certain locations remain at home for certain periods of time. Employers are permitted to ask employees whether they are returning from these locations, even if the travel was personal.
If an employer takes the temperature of, or requests medical information from, just one or a handful of employees (as opposed to all), the employer must have a reasonable belief based on objective evidence of possible COVID-19 infection. Therefore, it is important for an employer to first consider why it wants to take action regarding particular employees.
[Updated April 24, 2020] Employers also are permitted to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Consistent with traditional ADA standards, employers should ensure that the tests are accurate and reliable. Employers should review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and regularly check for updates. According to the EEOC, employers also should consider the incidence of false-positives or false-negatives associated with a particular test and bear in mind that accurate testing only reveals whether the virus is currently present. A negative test does not mean the employee will not acquire the virus later, and employers should still require employees to observe infection control practices to the greatest extent possible.
[Updated June 17, 2020] Employers are not allowed, however, to require COVID-19 antibody testing before permitting employees to enter the workplace. According to the EEOC, which relied upon CDC guidance, antibody testing does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Antibody testing is not considered a primary tool for diagnosing an active COVID-19 infection. Further, as definitive data are lacking, it remains uncertain whether individuals with antibodies are protected against reinfection with COVID-19, and if so, what concentration of antibodies is needed to confer protection.
[Updated June 11, 2020] Employers should be aware that employees may request alternative methods of screening, for example, due to medical conditions or as a religious accommodation. Employers should proceed as they would with any other request for an accommodation, although they may choose to make the accommodation available to anyone who asks without initiating the interactive process. If necessary, an employer may request medical documentation to support the employee’s request, and then determine if the requested accommodation or an effective alternative can be provided, absent undue hardship.
[September 9, 2020] While employers should strive to gain the cooperation of employees, those who refuse to have their temperature taken or refuse to answer questions about whether they have COVID-19, have symptoms of COVID-19, or have been tested for COVID-19 may be physically barred from the workplace.
Employers also may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as all entering employees in the same type of job are likewise tested. In addition, an employer may discuss teleworking options or postponing the start date with individuals at higher risk from COVID-19—for example, because they are over 65 years old or pregnant. However, an employer may not unilaterally postpone a start date or withdraw a job offer because an individual is at higher risk from COVID-19.
Requests for Accommodation in the Workplace
There also may be reasonable accommodations that could offer protection to employees whose disabilities put them at greater risk from COVID-19 and who therefore request such actions to eliminate possible exposure. [Updated May 5, 2020] After receiving such a request, employers may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.
Accommodations for those who request reduced contact with others due to a disability may include changes to the work environment, such as designating one-way aisles and using Plexiglas tables or other barriers to ensure minimum distances between customers and coworkers whenever feasible. Temporary restructuring of marginal job duties, temporary transfers to a different position, or the modification of a work schedule or shift assignment also may permit an employee with a disability to safely perform the essential functions of the job while reducing exposure to others in the workplace or while commuting. While engaging in the interactive process or awaiting verification from a health care provider to support the employee’s requested accommodation, employers may consider teleworking or leave as a temporary accommodation for employees whose disabilities put them at higher risk from COVID-19.
[Updated September 9, 2020] An employer does not automatically have to grant a request to continue to telework as an accommodation, even if its employees were previously working from home due to COVID-19. Rather, the employer is entitled to evaluate the disability-related limitation that necessitates the requested accommodation. To the extent that an employer permitted telework or chose to excuse employees from performing one or more essential functions of their jobs due to COVID-19 prior to reopening, a telework accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function or would otherwise be unreasonable. The employer has no obligation under the ADA to refrain from restoring employees’ essential duties.
[Updated June 11, 2020] Employers should keep in mind that the ADA does not require that accommodation of an employee without a disability because of the disability-related needs of a family member or other person with whom they are associated. As an example, the EEOC explained that an employee without a disability is not entitled to telework in order to protect a family member with a disability from potential COVID-19 exposure. An employer which nonetheless chooses to provide such flexibilities should use care to ensure that all such requests are treated evenhandedly, and it must avoid disparate treatment of employees based on any protected class or characteristic. For example, under Title VII, female employees cannot be given more favorable treatment than males because of gender-based assumptions about who may have caretaking responsibilities at home.
[Updated June 11, 2020] As workplaces plan to reopen, the EEOC has recommended that employers make information available in advance to all employees about whom to contact should they wish to request an accommodation for a disability upon returning to work. Employers can advise employees that all requests will be considered on an individualized basis. If a request is received in advance of an employee’s return to work, an employer may nonetheless start the interactive process as soon as it is received.
Employees With Heightened Risk Factors
[Updated May 7, 2020] On May 7, 2020, the EEOC provided updated guidance regarding the application of the ADA where an employer knows that an employee has a medical condition that places him/her at higher risk from COVID-19. An employer is not permitted to exclude such an employee from the workplace (or take any other adverse action) solely because the employee has a disability the CDC identifies as placing him or her at higher risk, unless the disability poses a “direct threat” that cannot be eliminated or reduced by reasonable accommodation. This requires the employer to show a “significant risk of substantial harm” through an individualized assessment based on reasonable medical judgment about this employee’s disability. Any analysis should include considerations based on the severity of the pandemic in a particular area, likelihood of exposure, the employee’s own health (for example, whether the employee’s disability is well-controlled), the particular job duties, and measures the employer is taking in general to protect all workers. As with any other request for an accommodation, the employer must also engage in the interactive process to explore potential reasonable accommodations. Reasonable accommodations may include telework, leave, or reassignment.
[Updated June 11, 2020] Many employers have asked whether they may exclude from the workplace populations who are at higher risk from COVID-19, such as due to advanced age or pregnancy. Even if motivated by benevolent concerns, employers are not permitted to unilaterally single out workers on the basis of pregnancy or age. However, employers should keep in mind that pregnancy-related conditions may constitute disabilities under the ADA, in which case any requested accommodations should be considered under the usual ADA rules. Further, Title VII requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. Under the Age Discrimination in Employment Act (ADEA), employers are not required to provide employees with accommodations due to their age, though employers are free to provide flexibility to workers aged 65 and older, even if this results in younger workers ages 40-64 being treated less favorably based on age by comparison. (Note: A small handful of states prohibit reverse age discrimination, so be aware of local laws.)
Maintaining Medical Information, Confidentiality and Other Concerns
All medical information acquired by the employer, such as whether an employee had a fever or other symptoms, is subject to standard ADA confidentiality requirements. Employers should make every effort to limit the number of people who learn of employee medical information. [Updated September 9, 2020] However, the ADA allows the employer to inform employees that they may have been in contact with a co-worker who has tested positive for COVID-19 or is exhibiting COVID-19 symptoms, without revealing the employee’s name. For example, using a generic descriptor such as “someone on the fourth floor has tested positive for COVID-19” provides notice without violating the ADA.
Employers are permitted to store medical information related to COVID-19 in existing medical files, which should be maintained separately from regular personnel files. In the event that a temporary staffing agency or contractor learns that a placed employee has contracted COVID-19, the staffing agency or contractor may notify the customer and disclose the name of the employee, because the customer may need to determine if this employee had contact with anyone in the workplace.
[Updated June 11, 2020] The EEOC has cautioned employers to be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about COVID-19 or its origins. Employers should ensure that employees are familiar with their anti-harassment and anti-discrimination policies, and remind employees that harassment can result in disciplinary action up to and including termination. Managers should also know their legal obligations and be instructed to resolve potential problems, if at all possible, before they rise to the level of unlawful discrimination.
Based on inquiries from our clients, the new questions in the “frequently asked questions” section of the EEOC Guidance and the EEOC’s webinar should be of the greatest interest to any employer.
Finally, the revised EEOC Guidance reminds employers that as the COVID-19 situation evolves, guidance from public health authorities may change, so employers should stay updated on how best to slow the spread of this disease and protect workers, customers, clients, and the general public.
Click here for our reopening checklist and here for more details on OSHA’s guidance
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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.