As employers prepare to return to work, more EEOC guidance on COVID-19 and ADA
As employers begin to cautiously prepare for a return to the physical workplace in the coming weeks, the Equal Employment Opportunity Commission (EEOC) is continuing to update its Technical Assistance Guidance on COVID-19 and the Americans with Disabilities Act (ADA).
In a series of new questions and answers issued on April 17, 2020, the EEOC addresses some practical questions related to reasonable accommodations and adds a new section to its guidance on return to work issues.
Issues addressed in the April 17, 2020 EEOC update:
The EEOC’s COVID-19 technical assistance recognizes that employers will still need to identify reasonable accommodations for disabled employees during the pandemic – although the interactive process may be a bit different during the pandemic.
The interactive process during the pandemic. The interactive process is a key aspect of identifying reasonable accommodations for an employee with a disability. The EEOC confirms that during the pandemic an employer must still engage in the interactive process and may request information from an employee, including medical documentation, why an accommodation is needed, and how a proposed accommodation will enable the employee to continue performing the "essential functions" of his position.
Temporary accommodations during the pandemic. Recognizing that employers’ time may be stretched during the pandemic, the EEOC notes that some employers may choose to forgo or shorten the exchange of information that is part of the interactive process. The EEOC cautions that as government restrictions change, the need for accommodations may also change. This may result in more requests for short-term accommodations. Practically, the EEOC further notes that employers may wish to adapt the interactive process to suit changing circumstances based on public health directives.
Employers may, for example, opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Using an alternative way to identify accommodations may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts the employee at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.
Employers can ask about needed accommodations on return to work. Employers are often reluctant to ask employees directly about the need for an accommodation. However, the EEOC notes that as the workplace begins to re-open, employers may ask employees with disabilities to communicate about that they believe they may need when they return to work.
Return to work concerns
As states begin to discuss lifting restrictions and employers make plans to return to work, the EEOC has added a new section to its guidance to address practical concerns about how employers will balance new safety precautions with ADA obligations.
Screening returning employees for COVID-19. As stay-at-home orders give way to new workplace safety protocols, employers want to understand whether screening employees for COVID-19 when entering the workplace – through medical questions and taking temperatures – is consistent with the ADA.
Significantly, the EEOC notes that as long as employers implement screening that is consistent with advice from the CDC and public health authorities, those employers will be acting consistent with the ADA.
The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.
By way of example, the EEOC states that this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace.
However, employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.
Personal protective gear and infection control practices. New workplace safety measures will likely require returning workers to wear personal protective gear and to engage in infection control practices. Requiring employees to comply with those measures is also consistent with the ADA.
However, where an employee with a disability needs a related reasonable accommodation, such as non-latex gloves or a modified face masks for interpreters or gowns designed for individuals who use wheelchairs, or a religious accommodation under Title VII, the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII.
As new procedures and protocols develop to keep the workplace safe, employers will need to continue to balance the new requirements against on-going ADA obligations. Employers should expect the EEOC to continue to update its guidance as issues develop.
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.