On April 9, 2020, the EEOC published further technical assistance questions and answers regarding COVID-19, the Americans with Disabilities Act (“ADA”), and other federal equal employment opportunity laws. The guidance expands on the EEOC’s previous publication and answers additional questions, clarifies previous answers, and provides updates in light of new information that health authorities have learned about the COVID-19 pandemic. The following provides a summary of the new information from the guidance. The complete update may be found at: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
1. When screening employees who are entering the workplace during the pandemic, are employers limited to asking employees about COVID-19 symptoms that the EEOC has identified as examples, or may they ask about other symptoms that public health authorities have identified as being associated with COVID-19?
Employers are not limiting to asking about the symptoms of COVID-19 that the EEOC has identified as examples. As healthcare providers and authorities learn more about COVID-19, they may identify additional symptoms associated with the disease. The EEOC recommends that employers rely on such providers and authorities for guidance in selecting questions to ask their employees in order to determine if they pose a direct threat to the health of their workplaces.
2. What are other symptoms that healthcare providers and authorities have identified as being associated with COVID-19?
Additional symptoms associated with COVID-19 include a new loss of smell or taste. Healthcare providers and authorities have also associated gastrointestinal issues such as nausea, diarrhea, and vomiting with the disease.
3. Can employers store information they obtain related to COVID-19 in existing medical files, or must they create a new system of medical files for such information?
Employers may store all medical information they obtain related to COVID-19 in existing medical files. There is no need for employers to create a new system of medical files for information related to COVID-19.
4. If an employer checks its employees’ temperatures before entering the workplace, may the employer maintain a log of the results?
Yes, so long as it maintains the confidentiality of the information it obtains.
5. If an employer learns that one of its employees has COVID-19, may it disclose the name of the employee to a public health agency?
6. Where a staffing agency or contractor places an employee in an employer’s workplace and learns that the employee it placed has COVID-19, may it notify the employer of this?
Yes, because the employer may need to determine if the employee had contact with anyone in its workplace, the staffing agency or contractor may notify the employer and disclose the employee’s name to the employer.
7. May an employer withdraw a job offer to an employee who is over 65 years old or pregnant, as the CDC has identified such individuals as being at a higher risk for COVID-19 complications?
No. The fact that the CDC has identified individuals who are over 65 years old or who are pregnant as being at greater risk for COVID-19 complications does not justify an employer withdrawing a job offer to such an individual. However, an employer may allow such an employee to telework or discuss if he/she would like to postpone his/her start date.
8. If an employee is working in a job that may only be performed in the workplace and has a pre-existing condition that puts him/her at a higher risk of complications from COVID-19, are there any reasonable accommodations that could offer him/her protection?
Yes, there may be accommodations that meet an employee’s need to eliminate exposure to COVID-19 on a temporary basis without causing an undue hardship on the employer. Examples of solutions for employees who request reduced contact with others because of a disability include designating one-way aisles and using plexiglass, tables, or other barriers to ensure minimum distances between customers and co-workers.
Employers and employees should be flexible in working together to determine whether an accommodation would be possible. Options to reduce exposure to others may include temporarily restructuring marginal job duties, temporarily transferring employees to different positions, or modifying work schedules or shift assignments.
9. If the COVID-19 pandemic has exacerbated an employee’s pre-existing mental illness or disorder, may he/she be entitled to a reasonable accommodation?
While many individuals feel significant stress due to the COVID-19 pandemic, employees with pre-existing mental health conditions such as anxiety, obsessive-compulsive, or post-traumatic stress disorders may have more difficulty handling the disruption to daily life that has resulted from the pandemic. If such an employee requests an accommodation, employers may, as with any accommodation request, ask questions to determine whether the condition is a disability, discuss with the employee how the requested accommodation would enable him/her to continue working, explore alternative accommodations, and, if needed, request medical documentation.
10. In a workplace where all employees are teleworking due to the pandemic, should an employer postpone discussing an employee’s request for an accommodation that will not be needed until he/she returns to the workplace?
While an employer may give higher priority to discussing requests for reasonable accommodations that are needed while employees are teleworking, there is no reason why an employer may not start discussing such a request now. It may be possible for the employer to acquire all the information it needs to make a decision while the employee is teleworking. Further, if the employer grants the employee’s request for an accommodation, the employer may be able to begin making arrangements for the accommodation in advance of the employee’s need for it.
11. If an employee with a disability was receiving a reasonable accommodation prior to the COVID-19 pandemic and requests an additional or altered accommodation, must the employer provide it?
An employee who was already receiving a reasonable accommodation may, absent undue hardship to his/her employer, be entitled to an additional or altered accommodation. The employer should engage in the interactive process with the employee to discuss whether the same or different disability is the reason for this new request and why the employee needs an additional or altered accommodation.
12. What resources are available to employers who are discussing reasonable accommodation requests with employees?
Employers who are discussing reasonable accommodation requests with their employees may find it helpful to consult the Job Accommodation Network’s website regarding different types of accommodations, which is available at: http://www.askjan.org/
. The Job Accommodation Network also has information specific to COVID-19 at: https://askjan.org/topics/COVID-19.cfm
13. Under the ADA, may employers require an employee to provide a doctor’s note certifying that he/she is fit to return to work?
Yes. Under the ADA, employers are permitted to require an employee to provide a fitness-for-duty certification in order to return to work. Practically, though, healthcare providers may be extremely busy and may not be able to provide such a certification in a timely manner. As such, employers may want to take a new approach, such as relying on a local clinic to provide them with a form, stamp, or email stating that the employee does not have COVID-19.
14. How can employers address and reduce workplace harassment that may arise due to the COVID-19 pandemic?
Employers can address and reduce such workplace harassment by making clear to their employees that harassment against individuals because of any protected characteristic, including national origin or race, is always prohibited and that it is not appropriate to misdirect any COVID-19 pandemic fears into harassment. The guidance, linked above, provides helpful anti-harassment tools from the EEOC. (See E.1.).
As you know, the situation with and guidance around COVID-19 is ever evolving. We will continue to monitor guidance from the EEOC, CDC, and OSHA and provide updates should any of the above guidance materially change. Of course if you have any questions, please do not hesitate to contact us.