Labor & Employment Law Daily New EEOC Q&As provide insight into COVID-19 return-to-work issues
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Wednesday, April 22, 2020

New EEOC Q&As provide insight into COVID-19 return-to-work issues

By Pamela Wolf, J.D.

The updated technical assistance also focuses on reasonable accommodation and harassment issues.

On April 17, the EEOC once again updated its technical assistance guidance that addresses workplace questions arising under the continuing COVID-19 pandemic. The ongoing series of questions and answers explains how federal equal employment opportunity laws may come into play as employees and employers alike struggle to adapt workplace policies to address various issues that may arise during this public health crisis.

This particular update of What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws expands on a previous publication that focused on the ADA and Rehabilitation Act. It adds Q&As focused on return-to-work situations, making reasonable accommodations, and harassment.

Earlier pandemic guidance. The EEOC’s Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version]), which was updated as of March 19, 2020, address examples and information regarding COVID-19, including a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the EEOC updated its technical assistance to provide several new Q&As.

Reasonable accommodation requests. The updated Q&As provide further information about reasonable accommodations during the COVID-19 pandemic, including the following.

Is it a disability? During the pandemic, if an employee requests an accommodation for a medical condition (either at home or in the workplace), an employer may still request information to determine whether the condition is a disability. If not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a “disability” as defined by the ADA.

Why the accommodation is needed. An employer may still engage in the interactive process during the pandemic and request information from an employee about why an accommodation is needed. If not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee may include:

  • How the disability creates a limitation:
  • How the requested accommodation will effectively address the limitation;
  • Whether another form of accommodation could effectively address the issue; and
  • How a proposed accommodation will enable the employee to continue performing the “essential functions” of the position.

Temporary accommodations. When there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, the employer may provide a temporary accommodation. Given the pandemic, some employers may choose to forgo or shorten the “interactive process” and grant the request. When government restrictions change, or are partially or fully lifted, the need for accommodations may also change. This may result in more requests for short-term accommodations. Employers may wish to adapt the interactive process and devise end dates for the accommodation, to suit changing circumstances based on public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also want to put an end date on the accommodation—for example, a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate. Employers may also want to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting medical documentation.

Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts them at greater risk during the pandemic, or to employees who have disabilities exacerbated by the pandemic.

Employees may also request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.

Future accommodations. An employer may ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace. Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens. Employers may begin the interactive process to determine whether the impairment is a disability and the reasons that an accommodation is needed.

Undue hardship. The circumstances of the pandemic are relevant to whether a requested accommodation can be denied because it poses an undue hardship, An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

Significant difficulty. An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult in this pandemic to:

  • Conduct a needs assessment;
  • Acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking;
  • Provide employees with temporary assignments;
  • Remove marginal functions; or
  • Readily hire temporary workers for specialized positions.

If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

Significant expense. In terms of “significant expense,” prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components). However, the sudden loss of some or all of an employer’s income stream because of the COVID-19 pandemic is a relevant consideration.

Also relevant is the amount of discretionary funds available at this time—when considering other expenses—and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).

These considerations do not mean that an employer can reject any accommodation that costs money. Rather, an employer must weigh the cost of an accommodation against its current budget, while taking account of constraints created by the pandemic. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations available.

Pandemic-related harassment. The technical assistance additions also discuss pandemic-related harassment, noting that there are steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

Return to work. The new Q&As discuss the steps that employers can take that are consistent with the ADA to screen employees for COVID-19 when they enter the workplace as stay-at-home orders are modified or lifted in their localities. 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.

Direct threat. Direct threat is to be determined based on the best available objective medical evidence, such as guidance from CDC or other public health authorities. Therefore, employers will be acting consistently with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that particular time. This may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Here, the EEOC noted that the CDC recently posted information on return by certain types of critical workers.

Further, employers should make sure they do not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

Modified PPE. When returning to work, an employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), 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.

EEOC resources. In response to inquiries from the public, the EEOC has provided resources on its website related to the pandemic in an employment context. The agency will continue to monitor developments and provide assistance to the public as needed.

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