As we anticipated, the Equal Employment Opportunity Commission (EEOC) has updated its COVID-19 guidance, including a Technical Assistance Questions and Answers page that addresses specific questions regarding the Americans With Disabilities Act (ADA) and other laws that affect employers during the pandemic. The update consolidates information and guidance from a variety of sources. Here are the highlights.
Disability-Related Inquiries and Medical Exams
In March, the EEOC stated that employers can require employees to be tested for COVID-19 before returning to the workplace. The new guidance explains further, adding allowance for periodic testing of on-site employees to determine the safety of their “continued presence” at the workplace. As long as employers follow Center for Disease Control and Prevention (CDC) guidelines for COVID-19 testing, these job-related tests meet the ADA’s business necessity standards.
In regard to COVID-19 inquiries, the EEOC reiterates that employers may ask all employees about to enter the workplace if they have COVID-19 or associated symptoms, or if they have been tested for the virus. The guidance also permits an employer to screen a particular employee, as long as the employer has a “reasonable belief based on objective evidence” that the employee might have the virus.
However, the employer cannot ask employees whether a family member has COVID-19 or related symptoms, an inquiry which would violate the Genetic Information Nondiscrimination Act (GINA). The EEOC does, however, clarify that “GINA does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who has symptoms associated with the virus.”
Any employee who refuses to submit to temperature testing or answer COVID-19-related questions can be barred from entry or continued presence at the worksite under the ADA. Earlier guidance about following the usual reasonable accommodation process if an employee requests an alternative method of screening remains in effect.
If an employee is absent from work, the ADA allows an employer to ask why and to question their symptoms as part of workplace screening for COVID-19.
Confidentiality of Medical Information
In response to questions about confidentiality, the EEOC expands previous guidance regarding the privacy of employee or applicant medical information obtained through COVID-19 screenings. If an employer learns that an employee has symptoms or a diagnosis of COVID-19, the ADA does not prevent disclosure of the information to company officials in order that they can take action consistent with the CDC and public health authority guidance.
However, the employer should make every effort to limit the number of people who know the identity of the employee. Coworkers can be notified of possible contact with a COVID-19-positive employee using a generic descriptor like location or floor to comply with the ADA. Employees also can inform supervisors if a coworker has symptoms associated with COVID-19 without violating ADA confidentiality. The EEOC does permit the employer to withhold COVID-19 information from the staff about an employee who is teleworking because of self-quarantine or who was on leave at diagnosis.
Most of the updates to the EEOC guidelines for reasonable accommodation under the ADA during the pandemic relate to teleworking. The guidelines state that employers that have allowed employees to telework while the workplace has been closed do not have to automatically grant a request to continue teleworking as a reasonable accommodation if no disability-related limitation exists. Even in the case of a disability-related limitation, the employer may be able to provide reasonable accommodation at the workplace as an alternative to telecommuting. Requests should be considered on a case-by-case basis.
Temporary telework arrangements in effect during the workplace shutdown can provide information about whether the employee is able to perform essential job functions while telecommuting. The ADA does not require an employer to change essential functions in order to accommodate an employee, but employers may have seen that the employee can indeed perform essential functions remotely. Both employers and employees are encouraged to be creative and flexible in determining what accommodations are feasible and do not pose undue hardship in the workplace, especially given the fact that the circumstances of the pandemic may cause delay in discussing and providing warranted accommodation.
Furloughs and Layoffs
The EEOC includes a specific reminder to employers that they are prohibited from selecting people for furlough or layoff based on the individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity.
Flexible Arrangements and the ADEA
A previous update emphasized that the Age Discrimination in Employment Act (ADEA) does not prohibit employers from offering greater flexibility to employees age 65 and older who are at higher risk of severe illness if they contract COVID-19. This update adds that the ADEA prohibits less favorable treatment of older workers.
As we navigate how the continued pandemic affects the workplace, the EEOC will likely further update and clarify their guidance. If you have questions about how COVID-19 guidance applies to your specific workplace, consult your employment law attorney. As always, we are happy to help.