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 Technical Assistance Q&As Update

Last Friday, April 17, 2020, the EEOC updated its Technical Assistance Q&As about COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws. The updated Q&As reiterate prior guidance and offer some new information. Key provisions for employers include the following:

  • Disability-related inquiries and exams
    • During the pandemic, employers may ask employees if they are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath or sore throat. Employers should rely on CDC and other public health authorities for guidance on additional, emerging symptoms which may be associated with COVID-19. Such new symptoms may include a loss of smell or taste, as well as gastrointestinal problems. (See A.1-A.2)
    • Employers may measure employees’ body temperature at work and maintain a log of its results. See below regarding maintaining the confidentiality of such information. (See A.3, B.2)
    • Employers may require employees with symptoms of COVID-19 to leave the workplace and/or stay home. (See A.4)
  • Confidentiality of Medical Information
    • Employers must maintain all information about employee illnesses, including body temperature logs, separately from personnel files. Such information must be maintained as confidential medical records in compliance with ADA. All medical information relating to COVID-19 may be stored in employees’ existing medical files. (See B.1)
    • An employer may disclose the name of an employee with COVID-19 to a public health agency. (See B.3) Note that this does not include disclosure of the employee’s name to co-workers.
    • A staffing agency or contractor who learns that one of its temporary workers has COVID-19 may notify and disclose the name of that temporary worker to the employer where the worker has been placed. (See B.4)
  • Hiring and Onboarding
    • An employer may screen job applicants for symptoms of COVID-19 and take applicants’ body temperatures after making a conditional job offer, as long as it does so for all entering employees for the job. (See C.1-C.2)
    • If an employer needs an applicant to start immediately, but the applicant has COVID-19 or related symptoms, the employer may withdraw a job offer to the applicant. An employer may not withdraw a job offer simply because an applicant is age 65 or older or pregnant and is at increased risk for COVID-19. The employer may propose telework or delaying a start date. (See C.4-C.5)
  • Reasonable Accommodation
    • Employers may be required to consider reasonable accommodations that can offer protection to an individual at increased risk for COVID-19 in the workplace if they do not cause undue hardship to the employer. Flexibility by both employers and employees is key in assessing potential accommodations. Keep in mind that federal agencies are encouraging employers and employees to engage in discussions and come up with creative solutions to foster the ability to work. (See D.1)
    • An employee whose preexisting mental illness or disorder is exacerbated by the pandemic may be entitled to a reasonable accommodation, absent undue hardship. Likewise, an employee who was receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. (See D.2, D.4)
    • If an employee requests a reasonable accommodation during the pandemic, the employer may still request information to determine whether the employee has a covered “disability” under the ADA. The employer may also engage in the interactive process and request information about why an accommodation is needed. (See D.5-D.6)
    • During the pandemic, where an employer may have limited time to discuss accommodation requests, an employer may forgo or shorten the interactive process and provide a temporary accommodation to an employee. The employer may also provide a requested accommodation on an interim or trial basis, or place an end date on the accommodation. (See D.7)
    • Circumstances created by the pandemic are relevant to determining whether a requested accommodation will cause significant difficulty or expense for an employer and, thus, pose an undue hardship. An employer’s difficulty in acquiring or providing certain accommodations, sudden loss of income stream, or reduction in discretionary funds due to the pandemic are relevant considerations in assessing whether a requested accommodation imposes an undue hardship, meaning significant difficulty or expense. (See D.9-D.11)
  • Pandemic-Related Harassment
    • Employers can minimize pandemic-related harassment by reminding employees that fear of the pandemic should not be misdirected against individuals because of any protected characteristic, including national origin or race. This holds true even when employees are teleworking or still working on site during the pandemic. As workplaces reopen or return to full operations, employers should reiterate prohibitions against all forms of harassment and discrimination and train managers to watch for and report any issues. (See E.1-E.2)
  • Return to Work
    • When employees begin to return to the physical workplace, employers can implement screening measures (i.e. take temperatures, ask questions about symptoms) as long as they are consistent with advice from the CDC and public health authorities regarding that type of workplace at that time. (See G.1)
    • Employers may need to consider requests for modified protective gear as reasonable accommodations when employees with disabilities or who wear certain clothing as part of their religious observation return to the workplace.

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.

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