EEOC Issues Updated COVID-19 Guidance
On April 9, the EEOC issued updated guidance on COVID-19 and the ADA, Rehabilitation Act, and other EEO laws. Below are some of the highlights from these FAQs, as well as additional information from the EEOC’s webinar on this issue.
Disability Inquiries
Interestingly, the EEOC has said that “it is unclear at this time whether COVID-19 is or could be a disability under the ADA”, but that, either way, employers may bar employees with the virus from the workplace because of the direct threat to health and safety of other workers. To determine whether an employee has COVID-19, an employer may make certain inquiries.
Given the rapid and wide spread of COVID-19, the EEOC has permitted employers to take employees’ temperatures for a few weeks. As many employers know, employers are also permitted to ask if employees are experiencing COVID-19 symptoms such as fever, chills, cough, shortness of breath or sore throat. The EEOC has clarified that as the medical community learns more about COVID-19, employers may expand the list of symptoms they can ask about and recommends that employers review guidance from the CDC, reputable medical sources, and other health authorities to determine whether to add symptoms to their line of inquiry. For example, the EEOC says loss of smell or taste as well as gastrointestinal problems such as nausea, diarrhea, and vomiting may be newly identified symptoms. Although employers may ask these questions of employees who are reporting to work, employees are not permitted to ask these questions of employees who are teleworking, since they will not be physically interacting with coworkers and therefore do not pose a direct threat. Employers also should not single out specific employees for questioning, absent a “reasonable belief based on objective evidence” that the particular person may have COVID-19. For example, a persistent cough may be a basis for asking whether the employee may have COVID-19, but an employee appearing to be easily distracted would not. Employees may also screen applicants for symptoms of COVID-19 after making a conditional job offer, provided the employer does so for all employees entering the same type of job.
Employers may also ask about an employee’s possible exposure to COVID-19; however, the employee should be careful in wording the question. For example, asking an employee about whether the employee’s family member has been diagnosed with COVID-19 may (1) be too narrow a question, as the employee could have had close contact with someone who is not a family member but was infected, and (2) may violate GINA by asking about a family member’s medical history. Instead, the EEOC recommends the employer ask whether the individual has had close contact with anyone who the employee knows has been diagnosed with COVID-19, or who may have symptoms associated with the disease.
Employees who refuse to answer questions about whether the employee has COVID-19 symptoms may be barred from physical presence in the workplace. The EEOC, however, is silent on whether any other discipline may be imposed on these employees and instead encourages employers to ask the employee the reasons for the employee’s refusal, as employees may have concerns about whether and how this information will be kept confidential.
Confidentiality of Medical Information
Like all medical information, medical information related to COVID-19 (including temperature logs) must not be included in an employee’s personnel file, but rather stored separately. COVID-19 medical information, including employee statements regarding their symptoms and whether they have, or suspect they have, COVID-19, can be stored in existing medical files.
The EEOC notes that exactly who in an organization needs to know the identity of an employee diagnosed with, or with symptoms of, COVID-19 depends on the specific workplace and the reasons why the official needs the information. In all cases, however, the employer should make every effort to limit the number of people who know the employee’s identity, and anyone who does learn of this identity should be instructed to keep it confidential. Although co-workers in small workplaces may be able to easily ascertain the employee’s identity, the employer may not confirm the employees’ hunches. Employers, however, are permitted to disclose to the identity of an employee with COVID-19 to a public health agency.
Job Offers
Employers may not postpone an employee’s start date or withdraw a job offer simply because the newly hired individual is over 65, pregnant, or otherwise at higher risk of contracting COVID-19. The employer may, however, discuss with these individuals whether they would like to postpone their start date or whether they need other possible accommodations, such as telework. The EEOC’s FAQs state that if an employer needs an applicant to start immediately, but the individual has COVID-19 or COVID-19 symptoms, the employer can withdraw the job offer, as the individual cannot safely enter the workplace. Employers are cautioned, however, that many state and local laws, including the New York City Human Rights Law, are interpreted more broadly than the ADA, and employers should consult with counsel before withdrawing a job offer for COVID-19 symptoms or illness.
Reasonable Accommodations
The updated guidance reiterates the employer’s obligation to engage in the interactive process with employees who may need new, additional or different accommodations during the COVID-19 pandemic, including employees with pre-existing mental illness that has been exacerbated by the COVID-19 pandemic, employees with pre-existing disabilities who may be at higher risk from COVID-19, and employees with existing accommodations who may need a different type of accommodation to facilitate telework. The EEOC reminds employers that due to the pandemic, obtaining relevant medical documentation from health care providers may be delayed, and so employers may consider other ways to verify the existence of a disability, such as a health insurance record. Employers may also consider whether to provide an accommodation on a temporary or provisional basis while awaiting documentation.
The EEOC also notes that given the large number of employers who are now permitting telework, questions were raised whether an employer must automatically grant telework as a reasonable accommodation once the public health isolation measures have ended. The EEOC affirmed that there is no such obligation. If an employer has an alternative to telework that effectively addresses the disability-related need, then the employer may choose that alternative. Additionally, employers who are choosing to excuse employees from performing one or more essential functions to allow the employee to telework due to the pandemic do not have to continue permitting telework once the crisis has ended if doing so would require continued excusal from performing that function. The EEOC did note, however, that employers who had denied requests to telework in the past because of concerns about an individual’s ability to perform their essential functions remotely may need to reconsider any such renewed telework requests once the pandemic has passed, in light of all of the facts and circumstances.
Although this guidance from the EEOC is helpful, the situation surrounding COVID-19 is constantly evolving. Employers are also often subject to myriad other state and local laws which may impose additional obligations or hold employers to different standards. Employers with questions regarding how to handle COVID-19 issues in the workplace should therefore consult with qualified counsel and may contact any attorney at the firm.
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