EEOC provides updated guidance on COVID-19 and ADA related issues

As the COVID-19 crisis continues to impact businesses, employers find themselves mired in the details of employee medical information that they typically try to avoid. This puts employers in the precarious positon of having to navigate between keeping on-site essential workers safe, following state and local requirements and CDC guidance, and complying with the Americans with Disabilities Act (ADA), which continues to protect workers’ medical information, require reasonable accommodations, and prohibit disability discrimination.

The Equal Employment Opportunity Commission (EEOC), which enforces the ADA, actually had existing pandemic guidance in place that provided employers some initial insight on handling the onslaught of issues. However, because this crisis is like none before, employer questions and concerns have continued to evolve and many remained unaddressed. To assist employers, the EEOC updated its Technical Assistance Guidance on April 9, 2020, to specifically address employers’ common COVID-19 questions and concerns related to the ADA and other EEOC-enforced laws.  

Key COVD-19 issues addressed by the EEOC:

Disability-related inquiries and medical exams

Employers have learned to limit medical inquiries to those that are job-related and consistent with business necessity. Of course, it is now clear that a critical aspect of keeping the workforce safe is asking employees direct questions about various medical symptoms. The EEOC recognized that the practical need to ask these questions does not conflict with the ADA.

• Questions about COVID-19 symptoms: According to the EEOC, during a pandemic, employers may ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Of course, employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

  In addition, as public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

• Temperature taking: States and localities have directed employers to take workers temperatures, which employers were concerned would be considered a prohibited medical exam under the ADA. On March 17, 2020, the EEOC noted that generally, measuring an employee's body temperature is a medical examination. However, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature.
• Requiring employees to stay home: The ADA does allow employers to require employees to stay home if they have COVID-19 symptoms. The EEOC notes the CDC guidance that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
• Requiring a doctor’s note to return to work: The EEOC notes that requiring a doctor’s note certifying ability to return to work is permitted under the ADA either because the request is not disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

  The EEOC does go on to note, however that as a practical matter, however, health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.

  Separately, employers should also consider any directives issued by state and local authorities related to COVID-19 documentation and return to work issues.

Confidentiality of medical information

Employers have also identified concerns about need to collect and retain employee medical information to comply with local, state and CDC guidance.

• Maintaining the confidentiality of COVID-19 medical information: The ADA requires that all medical information about a particular employee be stored separately from the employee's personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee's statement that he has the disease or suspects he has the disease, or the employer's notes or other documentation from questioning an employee about symptoms. 
• Disclosure of a COVID-19 positive employee’s name to a public health agency: An employer may disclose the name of a COVID-19 positive employee to a public health agency. An employer may not, however, disclose an employee’s medical information to co-workers.

Hiring and onboarding

The EEOC provided the following guidance regarding hiring and onboarding issues.

• Screening applicants: An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
• Temperature taking: An employer may take an applicant’s temperature as part of a post-offer, pre-employment medical exam.
• Delaying start dates and withdrawing offers: An employer may delay the start date of an applicant who has COVID-19 or associated symptoms since, according to the CDC the individual should not be in the workplace. Further, an employer may withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it. Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
• Job offers and high risk applicants: However, an employer may not postpone or withdraw a job offer simply because an applicant has certain characteristics that place them at higher risk from COVID-19.  In those situations, the EEOC notes that an employer may choose to allow telework or to discuss with the individuals if they would like to postpone the start date.

Reasonable accommodations

The EEOC’s COVID-19 technical assistance recognizes that even during the pandemic employers may need to engage in the interactive process to identify reasonable accommodations for disabled employees.  

• Reasonable accommodations and high risk employees:  Employers should consider reasonable accommodations for employees who must come to the workplace, but have preexisting disabilities that put them at higher risk for COVID-19. The EEOC notes that reasonable accommodations may exist that could offer protection to an employee whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee's needs on a temporary basis without causing undue hardship on the employer. 

  The EEOC notes that low-cost solutions achieved with materials on hand or easily obtained may be effective. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

  Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting. 

• Reasonable accommodation for preexisting mental health condition: Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic. 

  As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed. 

• Changes to existing reasonable accommodations: An employee already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. The EEOC notes, for example that teleworking may change the type of accommodation needed. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.

Pandemic-related harassment

The EEOC has recognized the possibility that the COVID-19 crisis may result in an increase in harassment based on national origin, race, other protected status. The EEOC’s Chair, Janet Dhillon, has urged employers and employees alike to be mindful of instances of harassment, intimidation, or discrimination in the workplace and to take action to prevent or correct this behavior.

• Tools to reduce workplace harassment: Employers can help reduce the chance of harassment by explicitly communicating to the workforce that COVID-19 fears should not be misdirected against individuals because of a protected characteristic, including their national origin, race or other protected characteristics. The EEOC directs employers to practical anti-harassment tools already available including anti-harassment policy tips for small businesses and checklists for employers who want to reduce and address harassment in the workplace.

The McDonald Hopkins Labor and Employment Response Team will continue to monitor developments and provide updates on employment issues impacted by the COVID-19 crisis.