As we previously discussed here (“EEOC Provides COVID-19 Guidance Via Webinar (Part I of II)”), here (“EEOC Provides COVID-19 Guidance Via Webinar (Part II)”) and here (“EEOC Updates COVID-19 Technical Assistance”), the Equal Employment Opportunity Commission ("EEOC") has previously addressed several employment practice concerns throughout the ongoing COVID-19 pandemic.

Earlier this fall, the EEOC released an updated technical assistance document, “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws” (“Updated Guidance”). With the current surge we are experiencing and vaccines on the near-term horizon, this Updated Guidance is as important as ever.

The Updated Guidance incorporates information from other agency resources and modifies two existing EEOC Q&As. Much of the guidance is to encourage employers to educate employees on COVID-19 symptoms and prevention. In total, 18 new Q&As have been adapted from prior EEOC guidance and another 2 Q&As were further clarified. Below are the major updates.

Disability-Related Inquiries and Medical Exams

May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) when evaluating an employee's initial or continued presence in the workplace?

This was an original Q&A from the EEOC COVID-19 Guidance but was updated to provide helpful clarification. The EEOC reinforced its position that employers can administer COVID-19 tests before permitting employees to enter the workplace. The ADA requires that any mandatory medical test of employees be "job related and consistent with business necessity." Amidst the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. The ADA does not interfere with employers following CDC recommendations or other public health authorities regarding whether, when and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA's "business necessity" standard.

May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19?

This question was adapted from the March 27, 2020 EEOC webinar to include a list of the current CDC identified current list of COVID-19 symptoms. An employer may ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19 or have symptoms associated with COVID-19 and ask if they have been tested for COVID-19.

During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick?

This question was adapted from the Pandemic Preparedness technical assistance to further clarify that due to the COVID-19 pandemic, at this time employers may ask employees who work on-site, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.

When an employee returns from travel during a pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled?

From the Pandemic Preparedness technical assistance, the EEOC adapts this question and advises that if the CDC or state or local public health officials recommend individuals who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.

Confidentiality of Medical Information

Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do?

Originally from the EEOC webinar, this question was adapted for this guidance to reinforce that under the ADA, medical information about employees should be kept confidential, including symptoms of, or a diagnosis of, COVID-19. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.

The EEOC notes, the ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee's identity. The EEOC further explains that using a generic descriptor, such as telling employees that "someone at this location" has COVID-19, provides notice and does not violate the ADA's prohibition of disclosure of confidential medical information. As the EEOC notes, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee's identity.

Reasonable Accommodation

When an employer requires some or all of its employees to telework because of COVID-19 or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations for disability under the ADA or the Rehabilitation Act that it provides to this individual in the workplace?

This question was adapted from Question 14 of the EEOC's webinar to include a practical note on teleworking and reasonable accommodations. As a practical matter, and in light of the circumstances that led to the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. By way of example, the EEOC explains that "an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace." If possible, providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.

Might the pandemic result in excusable delays during the interactive process?

This question was adapted from Question 17 of the EEOC's webinar to explain that although there will be an excusable delay in the interactive process due to COVID-19, employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

Furloughs and Layoffs

What are additional EEO considerations in planning furloughs or layoffs?

This question was adapted from Question 13 of the EEOC's webinar. The original question explained, by way of example, that pregnant women should not be laid off or furloughed even though they are categorized as high risk by the CDC. The EEOC further clarifies that the laws enforced by the EEOC prohibit covered employers from selecting people for furlough or layoff because of that individual's race, color, religion, national origin, sex, age, disability, protected genetic information or in retaliation for protected EEO activity.

As the COVID-19 situation is rapidly developing, employers should continue to watch for additional guidance from the EEOC and/or local officials.

Originally Published by Hall Render, December 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.