EEOC Issues Additional Guidance Addressing Common COVID-19 Questions – April 17, 2020

by Teresa R. Tracy

On April 17, 2020, the Equal Employment Opportunity Commission (EEOC) issued additional guidance regarding COVID-19 issues under the various federal non-discrimination laws that it enforces. That additional guidance from the EEOC can be found here. Our alert on the earlier guidance can be found here. The following is limited to the additional guidance released on April 17th.

Requesting information regarding disability status. During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, an employer may still request information to determine if the condition is a disability if it is not obvious or already known.

Interactive process. During the pandemic, an employer may still engage in the interactive process and request information from an employee about why an accommodation is needed, if it is not obvious or already known. The employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one requested or any other.

Possible questions include:

1. how the disability creates a limitation,
2. how the requested accommodation will effectively address the limitation,
3. whether another form of accommodation could effectively address the issue, and
4. how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).

Temporary accommodations. If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, the employer may provide a temporary accommodation. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” and grant the request.

In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change. This may result in more requests for short-term accommodations.

• Employers may wish to adapt the interactive process – and devise end dates for the accommodation – to suit changing circumstances based on public health directives.
• Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate).
• Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation.
• Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts the employee at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.

Anticipating future accommodations. Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens. Employers may begin the interactive process focused on whether the impairment is a disability and the reasons that an accommodation is needed.

Pandemic may support undue hardship. The pandemic may be relevant to whether a requested accommodation can be denied because it poses an undue hardship, i.e., significant difficulty or expense. The EEOC recognized that in some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

• For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking.
• Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.
• The sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.
• Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).

These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

Permissible steps to screen employees when entering the workplace. As government stay-at-home orders and other restrictions are modified or lifted, employers can take steps consistent with the ADA to screen employees for COVID-19 when entering the workplace.

This includes making disability-related inquiries and conducting medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.

• For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace.
• Similarly, the CDC recently posted information on return by certain types of critical workers.

Of course, employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

Screening returning employees. As government say-at-home orders and other restrictions are modified or lifted and employees begin returning to work, employers must be sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

However, the ADA permits an employer to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.

• For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace.
• Similarly, the CDC recently posted information on return by certain types of critical workers.

Personal protective gear. An employer may require employees to wear protective gear (e.g., masks and gloves) and observe infection control practices (e.g., regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.

Good faith efforts to address harassment and discrimination. When a workplace reopens, it is advisable to remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information.

It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

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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.

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