EEOC Updates Guidance on COVID-19 and the Workplace

On September 8, 2020, the EEOC updated its technical assistance document, What You Should Know about COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws (“WYSK”). The updated document revises two pre-existing Q&As that address employer testing and employee requests for accommodation in advance of a return to work. It also incorporates information that previously appeared in other EEOC technical assistance documents, thus creating a single, more comprehensive, resource for COVID-19 related information.

With respect to employer-administered testing, the WYSK confirms that employers may take screening steps, including administering COVID-19 testing, to determine if employees entering the workplace have COVID-19 because they could pose a direct threat to the health of others. Employer-administered testing consistent with current CDC or other public health authority guidelines will meet the ADA’s “business necessity” standard. However, employers should ensure that tests are considered accurate and reliable, based on evolving guidance from the FDA, CDC and other public health authorities. Requiring an antibody test before allowing an employee to re-enter the workplace is not allowed under the ADA. (WYSK A.6-A.7)

As to potential requests for accommodation, the WYSK specifies that employers can inform the workforce that employees with disabilities may request accommodations in advance of their return to work. If advance requests are received, employers may begin the interactive process. If an employee chooses not to request an accommodation in advance, the employer must still consider a later request and engage in the same interactive process. (WYSK D.8) Keep in mind that accommodations based on a disability pertain only to the employee, not to their family members.

The revised WYSK includes additional information that has been incorporated from other EEOC resources. Key provisions include:

  • Employers may ask all employees entering the physical workplace if they have been diagnosed with, have symptoms of, or have been tested for COVID-19. An employer may limit this questioning to certain employee(s) only if it has a reasonable belief based upon objective evidence that the employee(s) may have the disease. An employer is not generally permitted to ask these questions of employees who are teleworking. (WYSK A.8- A.9)
  • Employers may not ask employees coming into the physical workplace whether family members have COVID-19 or symptoms of COVID-19; this is prohibited under the Genetic Information Nondiscrimination Act (“GINA”). However, employers may ask employees whether they have had contact with anyone who has been diagnosed with or had symptoms of COVID-19. An employee who refuses to answer such questions or submit to other health screenings prior to entering the physical workplace (without a rationale or request for an accommodation) may be denied entrance. (WYSK A.10-A.11)
  • If an employee works on-site and reports feeling ill or calls in sick, an employer may ask questions about their symptoms as part of workplace screening. An employer may also question employees about why they have been absent from work and/or where they have traveled recently, even if that travel was personal. (WYSK A.12-A.14)
  • The ADA’s confidentiality provisions do not prohibit a manager or co-worker who learns that an employee has COVID-19 or associated symptoms from reporting it to the relevant employer officials so that they can take steps consistent with guidance from CDC or other public health authorities. Employers should make every effort to limit the number of people who learn the identity of the employee and reinforce the confidential nature of that information. (WYSK B.5-B.6)
  • When an employee with a disability is teleworking, an employer is not necessarily required to provide them with the same reasonable accommodation as it would provide in the physical workplace. The employer and employee should discuss specific needs and explore whether a different accommodation might suffice in the home setting. An employer’s undue hardship considerations and/or access to accommodation equipment may change during prolonged teleworking periods. The EEOC encourages all parties to be creative and flexible in these situations. (WYSK D.14)
  • An employer that allows its workforce to telework to slow the spread of COVID-19 does not automatically have to grant requests for telework as a reasonable accommodation to every employee with a disability when employees are recalled to the physical workplace. If there is no disability-related limitation that requires teleworking, the employer does not need to provide continued telework as an accommodation. In addition, the fact that an employer may temporarily excuse performance of one or more essential functions during periods of telework does not mean that the employer has permanently changed the essential function of any job. The ADA never requires an employer to eliminate an essential function of a job as an accommodation for an individual with a disability. However, evidence that an employee with a disability is able to perform the essential functions of the job during periods of telework may be relevant to future requests for telework as a reasonable accommodation. (WYSK D.15-16)

All EEOC materials related to Covid-19 are available at www.eeoc.gov/coronavirus.

Your partners at Lake Effect HR & Law are closely monitoring the impact of COVID-19 on the workplace. Keep watching for blogs and emails for important legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

EEOC Updates Guidance On COVID-19 And EEO Laws

Earlier today, the EEOC updated its Q&A Covid-19 Guidance as it relates to the ADA, the Rehabilitation Act, and other federal EEO laws. Key new provisions specify:

  • The ADA does not require an employer to accommodate an employee without a disability in order to avoid exposing that employee’s family member who might be at a higher risk of severe illness from COVID-19 due to an underlying health condition (D.13).
  • Managers must understand how to recognize and respond to harassment based upon national origin, including demeaning, derogatory or hostile remarks directed against employees perceived to be of Chinese or Asian national origin. Employers may remind the workforce of Title VII’s prohibition against harassment and invite employees who experience or see such harassment to report it (E.3).
  • Employees who are teleworking are specifically prohibited from harassing other employees through emails, calls, videos or other virtual platforms (E.4.). This is consistent with EEOC guidance that an employer must address workplace harassment in any form, including electronic and virtual.
  • Before employees start returning to the workplace, and even if no date is set for their return, employers may (but are not required to) provide information about who to contact if employees wish to request an accommodation or flexibility for a disability or other reason (i.e. pregnancy, age, religious beliefs). If such requests are received in advance, the employer may begin the interactive process and/or consider non-disability related requests on an individualized basis consistent with federal EEO laws (G.6).
  • If an employee returning the worksite requests an alternative method of health screening due to a medical condition, the employer must consider it as a request for a reasonable accommodation under the ADA or the Rehabilitation Act and proceed with the interactive process. If an alternative method of screening is requested as a religious accommodation, the employer should determine whether the accommodation is available under Title VII of the Civil Rights Act of 1964 (G.7).
  • The ADEA prohibits employers from involuntarily excluding employees from the workplace based on age, even if the employer is trying to protect an older employee who may be at a higher risk of severe illness from COVID-19. However, the ADEA does not prohibit employers from providing flexibility to older workers, even if it results in younger workers (over age 40) being treated less favorably based on age in comparison. Older workers may request reasonable accommodations based on existing medical conditions or disabilities which may be covered under the ADA as a disability (H.1).
  • Employers can provide telework, modified schedules and other benefits to employees with school-aged children due to school closures, etc. during the pandemic as long as they do not treat employees differently based upon sex or other EEO-protected traits. Thus, female employees cannot be given greater flexibility than male employees based upon gender-based stereotypes about who may have primary childcare responsibilities (I.1).
  • Employers may not exclude employees from the workplace during the pandemic due to pregnancy, even if done for a benevolent purpose. This constitutes sex discrimination under Title VII (J.1). Still, pregnant employees may request reasonable accommodations based on a medical condition that qualifies as a disability under the ADA.
  • If an employee requests a reasonable accommodation due to a pregnancy-related or other medical condition, the employer must consider that request consistent with ADA requirements. In addition, the employer must treat pregnant employees the same as other employees with a similar ability or inability to work when it comes to requests for leave or other flexible work arrangements (J.2).

The legal and HR team at Lake Effect is closely monitoring the impact of COVID-19 on the workplace and will continue to provide our clients with updates as they are available. Check out our COVID-19 resource page for all of our pandemic-related legal updates and HR best practices. The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to help. Contact us at info@le-hrlaw.com or 1-844-333-5253.

EEOC Updates ADA Accommodations and EEO Reporting

On May 7, 2020, the EEOC updated an existing technical assistance publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.” New questions and answers on “Return to Work” address an employer’s obligations to accommodate employees with underlying medical conditions as they begin to return to the workplace during the ongoing COVID-19 pandemic. The EEOC also provided updated guidance on EEO reporting.

The new guidance confirms that if an employee has a medical condition that may create a higher risk for severe illness from COVID-19 (as identified by the CDC) and is in need of a reasonable accommodation, the employee must inform their employer either verbally or in writing about the medical condition and the potential need for an accommodation. The employer may then ask questions or seek medical documentation to determine whether the employee has a disability that can be reasonably accommodated without undue hardship. Notably, if an employee does not request an accommodation, the employer is not required to take action. If the employer knows and is concerned that an employee has a medical condition that increases the risk of severe illness from COVID-19 (as identified by the CDC), the employer may not exclude that employee from the workplace or take any other adverse action solely on that basis unless (1) the employee’s disability poses a “direct threat” to their health that (2) cannot be eliminated or reduced by reasonable accommodation.

The ADA “direct threat” requirement is a high, fact-specific standard. The direct threat assessment may not be based solely on a condition being on the CDC’s list; rather, an employer must make an individualized assessment based upon a reasonable medical judgment about the employee’s specific disability. In most cases, the employer will have to consider such factors as: the severity of the pandemic in the geographic area of the worksite; employee’s specific health condition; the employee’s job duties; likelihood of exposure to the virus at the worksite; and measures being taken by the employer to protect all workers.

Even if an employer determines that an employee’s disability poses a direct threat to the employee’s own health, the employer still cannot exclude or take adverse action against the employee unless there is no way to provide a reasonable accommodation absent undue hardship to the employer. Potential reasonable accommodations may include: providing enhanced protective gear or equipment; erecting protective barriers in the workplace; eliminating marginal functions; and temporarily modifying an employee’s work location or schedule.

This means that an employer may only bar such an employee from the workplace if, after going through all necessary steps and considering all potential accommodations, the facts demonstrate that the employee poses a significant risk of substantial harm to herself that cannot be eliminated by reasonable accommodation.

In a separate action today, the EEOC announced that it will delay collection of 2019 and 2020 EEO-1 (Employer Information Report), 2020 EEO-3 (Local Report) and 2020 EEO-5 (Elementary-Secondary Staff Information Report) due to the COVID-19 public health emergency. The EEOC expects to begin collecting 2019 and 2020 EEO-1 reports in March 2021, and it expects to begin collecting 2020 EEO-3 and EEO-5 reports in January 2021. The EEOC will notify filers of the precise dates the surveys will open as soon as those dates are available.

The legal and HR team at Lake Effect is closely monitoring the continuing impact of COVID-19 on the workplace and will continue to provide timely updates. Please visit our COVID-19 resource page for all of our pandemic-related legal updates and HR best practices. Contact us at info@le-hrlaw.com or 1-844-333-5253.

The ADA: Understanding Your Obligations

As HR professionals, we take a lead role in making sure our workplace policies and practices are both compliant and ethical. We need to make sure our managers are operating under the same guidelines. One area where a high level of risk may be lurking is in responding to employee performance issues, concerns and requests for accommodations in situations where the word “disability” is not used. Even if an employee does not say the word “disability,” the employer may still be on notice that the Americans with Disabilities Act (“ADA”) and its related legal obligations are implicated.

Here’s a scenario:
John works for a small manufacturing company and has struggled in his role. John’s manager, Dan, documents all of John’s performance related issues. John is worried about losing his job and anxious about what is going to happen next. John has a disability but does not explicitly use that word when talking to Dan. John asks to change his shift “to help his nerves” and to help address his performance related issues. Because John did not use the word “disability,” Dan does not consider this a formal accommodation request, nor does he bring this up to HR. After one final performance issue, Dan terminates John. John then files a claim against the employer for failing to accommodate his disability.

HR should train managers to be on the lookout for language that may trigger an accommodation under the ADA. This should include educating managers about physical and mental impairments that can constitute disabilities under ADA and the interplay of ADA, FMLA and Worker’s Compensation. Rather than have managers assess such requests, they should be coached to raise potential disability-related issues with HR. HR can then meet with the affected employee to determine if the ADA interactive dialog process needs to commence, or if this is simply a performance or behavior issue.

The experienced HR professionals and attorneys at Lake Effect HR & Law are ready to assist and advise if you have questions regarding ADA related issues in your organization. We are here to help you navigate this complex area. Contact us at info@le-hrlaw.com or 1-844-333-5253.

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