On April 17, 2020 and again on April 23, 2020, the Equal Employment Opportunity Commission (“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 technical assistance 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, along with the EEOC’s previous technical questions and answers, may be found at: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=.
1. If an employee requests an accommodation for a medical condition either at home or in the workplace during the pandemic, may an employer still request information from the employee to ascertain whether the condition is a disability under the ADA?
Yes, an employer may ask questions or request medical documentation to determine whether the employee has a disability under the ADA, if it is not obvious or already known. (The ADA defines “disability” as a physical or mental impairment that substantially limits a major life activity; an employee may also be considered to have a disability if he/she has a record of a substantially limiting impairment).
2. Is an employer permitted to engage in the interactive process during the pandemic and request information from an employee about why he/she needs an accommodation?
Yes, employers may still engage in the interactive process during the pandemic. This includes asking questions and/or requesting medical documentation to determine if the employee’s disability necessitates an accommodation, whether it is the one requested or an alternate accommodation. The EEOC provides employers with a few possible questions to ask when engaging in the interactive process, including: 1) how the employee’s disability creates a limitation; 2) how the requested accommodation will effectively address the employee’s limitation; 3) whether another accommodation could effectively address the issue; and 4) how a proposed accommodation will enable the employee to continue to perform the essential functions of his/her job.
3. May an employer provide a temporary accommodation to an employee if there is some urgency to providing an accommodation or if the employer has limited time to discuss the request during the pandemic?
Yes. As a result of the pandemic, employers may choose to simply grant an accommodation request instead of engaging in the interactive process, or may elect to reduce the amount of information exchanged during the interactive process before granting the request. Employers should keep in mind that an employee’s need for an accommodation may change when government restrictions change or are partially or fully lifted. The EEOC also explains that employers may adapt the interactive process and devise end dates for accommodations to suit changing circumstances based on public health directives.
Employers may also choose to place end dates on any accommodations granted during the pandemic. This may be a specific date (such as May 29, 2020) or when the employee returns to the workplace as the result of government’s lifting of social distancing guidelines. Employers may also consider providing an employee’s requested accommodation on an interim or trial basis, with an end date, while awaiting medical documentation. Such alternatives may be helpful when an employee needs an accommodation that provides greater protection that he/she needs due to a pre-existing disability that puts him/her at a greater risk during the pandemic. This could also be applicable to employees who have disabilities that have been exacerbated by the pandemic, such as anxiety disorders, obsessive-compulsive disorders, or post-traumatic stress disorders.
Further, should an employee request an extension to an accommodation, employers must consider granting the request. This is particularly true if current government restrictions are extended or if new ones are put in place.
4. Is it permissible for an employer to now ask employees if they will need a reasonable accommodation in the future when they are permitted to return to the workplace?
Yes, an employer may ask employees who have disabilities to request accommodations they anticipate they will need upon the re-opening of the workplace. Employers may begin to engage in the interactive process to determine whether the employee’s impairment is a disability and the reasons that he/she needs an accommodation.
5. Is the pandemic, along with its attendant circumstances, relevant to whether an employer may deny a request for an accommodation because it poses an undue hardship?
Yes. Employers are not required to provide a particular accommodation if it would pose an undue hardship, which is defined as a significant difficulty or expense. Employees and employers should keep in mind that an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.
6. What considerations regarding undue hardships may be relevant when determining whether a requested accommodation poses a “significant difficulty” during the pandemic?
An employer may consider whether current circumstances, including those related to the pandemic, create a significant difficulty in acquiring or providing a particular accommodation. These must also be considered in the context of the facts of the particular job and workplace. By way of example, it may be more difficult to conduct a needs assessment or acquire certain items; further, delivery of items may be challenged, particularly for employees who are working remotely. It may also be more difficult to provide employees with temporary assignments, to remove marginal functions, or to hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship, employees and employers should work together to explore alternatives that do not pose such issues.
7. What considerations regarding undue hardships may be relevant when determining whether a requested accommodation poses a “significant expense” during the pandemic?
Generally speaking, most accommodations requested before the pandemic did not pose a significant expense when considered in light of an employer’s overall budget and resources. However, as a result of the pandemic, many employers have suddenly lost some or all of their revenue stream, which is relevant to whether a requested accommodation is a significant expense. The amount of discretionary funds available to an employer is also relevant, as is whether there is an expected date when current restrictions on an employee’s business will be lifted. This does not mean that an employer can reject any request for an accommodation that will cost money. Rather, an employer must weigh the cost of an accommodation against its current budget, while also considering constraints created by the pandemic. In this regard, there may be many no-cost, or very low-cost, accommodations that can be provided.
8. What steps should an employer take to address possible harassment and discrimination against coworkers when the workplace is reopened?
Employers should remind employees that it is a violation of federal law to harass or otherwise discriminate against coworkers due to any protected category, including race, national origin, color, sex, religion, age (40 years old or older), disability, or genetic information. Employers should also advise supervisors and managers of their roles in watching for, stopping, and reporting harassment or other discrimination. Employers may also make clear to their employees that they will immediately review any allegations of harassment or discrimination and take appropriate action in response.
9. How will employers know what steps they can take and remain in compliance with the ADA to screen employees for COVID-19 when entering the workplace?
Under the ADA, employers may make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. As such, an inquiry or reliable medical exam meets this standard if it would be necessary to exclude from the workplace employees who have medical conditions that would pose a direct threat to health or safety. Whether a medical condition poses a direct threat is based on the best available objective medical evidence, and guidance from the Centers for Disease Control and Prevention (“CDC”) or other public health authorities is considered such evidence.
Given this, so long as an employer implements screening consistent with advice from the CDC and public health authorities, employers will be in compliance with the ADA. As provided in the EEOC’s previous guidance, this may include taking employees’ temperatures and asking questions about symptoms before permitting employees to enter the workplace. Employers may find it helpful to consult the guidance that the CDC recently published regarding the return to work by certain types of critical infrastructure workers who may have had exposure to a person with a suspected or confirmed case of COVID-19. That guidance is available at: https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html.
Employers should take care to not engage in any unlawful disparate treatment based on an employee’s protected characteristics when deciding which workers to screen and which workers to exclude from the workplace.
10. Is an employer permitted to administer a COVID-19 test before allowing employees to enter the workplace?
Because the ADA requires that any mandatory medical test administered to employees be job related and consistent with business necessity, and further because an individual with COVID-19 will pose a direct threat to the health of others, employers may take steps to determine if employees entering the workplace have the virus. Such steps include administering COVID-19 testing to employees before allowing them to enter the workplace.
In accordance with the ADA standard, employers should ensure that the tests they administer are accurate and reliable. The EEOC recommends that employers review guidance from the U.S. Food and Drug Administration, which is available at: https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-diagnostic-testing-sars-cov-2, to determine what is considered safe and accurate testing. Additionally, employers may consult guidance issued by the CDC and other public health authorities. The EEOC also advises employers to consider the frequency of any false positives or false negatives associated with a particular test, and further that accurate testing only determines if the employee currently has the virus. As such, it would not indicate if the employee will not later contract the virus.
Additionally, employers should still require, based on guidance from public health authorities and medical professionals, that employees observe infection control practices (to the greatest extent possible) in the workplace to prevent the transmission of COVID-19. Such practices may include regular handwashing and social distancing.
11. If an employer requires employees to wear personal protective equipment and engage in infection control practices, and some employees ask for accommodation due to a need for modified equipment, must an employer grant these requests?
Employers may require employees to wear personal protective equipment (such as masks and gloves) and engage in infection control procedures (such as regular hand washing and social distancing). However, where employees with disabilities need a reasonable accommodation (such as non-latex gloves or modified face masks for employees who communicate through lip reading) or need an accommodation for religious reasons under Title VII of the Civil Rights Act of 1964 (such as modified protective equipment due to religious dress), the employer should engage in the interactive process with the employee. This includes discussing the request and providing a modification or an alternative accommodation, if a feasible one exists and does not create an undue hardship on the employer.
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.