by Teresa R. Tracy
EEOC Further Updates COVID-19 Guidance to Address Ongoing Questions
On September 9, 2020, the EEOC issued updated Guidance regarding the interplay between COVID-19 and the laws that it enforces. All of the materials that the EEOC has which are related to COVID-19 can be found at www.eeoc.gov/coronavirus.
The new Guidance makes the following changes and/or updates to previously-issued written Guidance:
An employer may administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace.
Applying the ADA standard of “job related and consistent with business necessity” for a mandatory medical test of employees to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.
Consistent with the ADA standard, employers should ensure that the tests are considered accurate and reliable. For example, employers may review information 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. Because the CDC and FDA may revise their recommendations based on new information, it may be helpful to check these agency websites for updates.
Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Note that a positive test result reveals that an individual most likely has a current infection and may be able to transmit the virus to others. A negative test result means that the individual did not have detectable COVID-19 at the time of testing. A negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require–to the greatest extent possible–that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.
Note that this does not authorize an employer to require an employee to take an antibody test, since that test does not measure current infection.
An employer may ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19.
Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. The CDC has identified a current list of symptoms.
An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.
An employer may ask individual employees—as opposed to asking all employees—questions designed to determine if this employee has COVID-19, or require that individual employees have their temperatures taken or undergo other screening or testing only if the employer has a reasonable belief based on objective evidence that this person might have the disease.
Pursuant to this restriction, it is important for the employer to consider why it wishes to take these actions regarding a particular employee, such as a display of COVID-19 symptoms. In addition, the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate.
An employer cannot ask an employee who is physically coming into the workplace whether the employee has family members who have COVID-19 or symptoms associated with COVID-19.
The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. However, an employer can ask employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease without referencing or limiting the inquiry to family members.
An employer may bar an employee from physical presence in the workplace if the employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19.
Under the circumstances existing currently, the ADA allows an employer to bar an employee from physical presence in the workplace if the employee refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19.
To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. The employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The ADA prohibits such broad disclosures. Of course, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed.
During the COVID-19 pandemic, an employer may request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick.
Due to the COVID-19 pandemic, at this time employers may ask employees who work on-site, whether regularly or occasionally, and who report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.
An employer may ask an employee why he or she has been absent from work.
Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
When an employee returns from travel during a pandemic, an employer does not have to wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled.
Questions about where a person traveled would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.
If a manager learns that an employee has COVID-19 or has symptoms associated with the disease, the manager must report it in an way that is consistent with the ADA’s confidentiality requirements.
Information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information that must be maintained in a confidential manner even if it is not about a disability. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.
The question is really what information to report: Is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.
The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information.
Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.
An employee who must report to the workplace and who knows that a coworker who reports to the same workplace has symptoms associated with COVID-19 can communicate to a supervisor about that coworker’s symptoms.
It is not an ADA confidentiality violation for such an employee to inform his supervisor about a coworker’s symptoms. After learning about this situation, the supervisor should contact appropriate management officials to report this information and discuss next steps.
An employer who knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that the employee is in self-quarantine may tell staff that this particular employee is teleworking without saying why.
If staff need to know how to contact the employee, and that the employee is working even if not present in the workplace, then disclosure that the employee is teleworking without saying why is permissible. Also, if the employee was on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.
Employees, including managers and supervisors, who are themselves teleworking as a result of COVID-19 must still safeguard the confidentiality of medical information.
The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor has to do so. But to the extent that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. This means that paper notepads, laptops, or other devices should not be left where others can access the protected information.
Similarly, documentation must not be stored electronically where others would have access. A manager may even wish to use initials or another code to further ensure confidentiality of the name of an employee.
An employer may invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace.
Employers may inform the workforce that employees with disabilities may request accommodations in advance that they believe they may need when the workplace re-opens. If advance requests are received, employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.
When an employer requires some or all of its employees to telework because of COVID-19 or government officials require employers to shut down their facilities and have workers telework, the employer should be flexible and creative in considering a teleworking accommodation under the ADA or the Rehabilitation Act that it provides to this individual in the workplace.
If such a request to telework is made, the employer and employee should discuss what the employee needs and why, and whether the same or a different accommodation could suffice in the home setting. For example, an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace.
Also, the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. A reasonable accommodation that is feasible and does not pose an undue hardship in the workplace might pose one when considering circumstances, such as the place where it is needed and the reason for telework. For example, the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.
As a practical matter, and in light of the circumstances that led to the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. If possible, providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.
If an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19, and then reopens the workplace and recalls employees to the worksite, the employer does not have to automatically grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation.
Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.
To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.
The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.
An employer may be justified in again refusing a request for telework as an accommodation where, prior to the COVID-19 pandemic, a disabled employee requested and showed a disability-related need for telework as a reasonable accommodation but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely; the employee therefore continued to come to the workplace; but, after the COVID-19 crisis subsided and temporary telework ended, the employee renewed the request for telework as a reasonable accommodation.
Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.
The pandemic might result in excusable delays during the interactive process.
The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.
(Applicable to federal agencies) Situations created by the current COVID-19 crisis may constitute an “extenuating circumstance” that may justify a federal agency’s failure to meet its written timeline in its written reasonable accommodation procedures governing how quickly it will process requests and provide reasonable accommodations.
Situations created by the current COVID-19 crisis may constitute an “extenuating circumstance”—something beyond a federal agency’s control—that may justify exceeding the normal timeline that an agency has adopted in its internal reasonable accommodation procedures.
The other protected characteristics under federal non-discrimination laws continue to apply to furloughs and layoffs.
The laws enforced by the EEOC prohibit covered employers from selecting people for furlough or layoff because of that individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity.
If an employer offers flexibilities to other workers, older comparable workers may not be treated less favorably based on age.
If an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers less favorably based on their age.
This article is made available for educational purposes and to provide general information on current legal topics, not to provide specific legal advice. The publication of this article does not create any attorney-client relationship and should not be used as a substitute for competent legal advice from a licensed professional attorney.