Labor & Employment Law Daily Updated EEOC technical assistance discusses intersection of COVID-19 and antidiscrimination laws
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Tuesday, April 14, 2020

Updated EEOC technical assistance discusses intersection of COVID-19 and antidiscrimination laws

By Pamela Wolf, J.D.

The updates address issues related to medical inquiries, reasonable accommodations, and postponing start dates of new hires considered at greater risk of COVID-19 infection, among other things.

On April 9, the EEOC posted an updated and expanded technical assistance publication addressing questions arising under federal antidiscrimination laws related to the COVID-19 pandemic. “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” expands on previous technical assistance that focused on the ADA and Rehabilitation Act (see ‘What you should know about the ADA, the Rehab Act, and COVID-19,’ March 19, 2020). The new assistance document also adds questions-and-answers that address common inquiries.

The EEOC told employers to remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves, and so they should continue to follow the most current information on maintaining workplace safety.

This latest What You Should Know publication adds several Q&As that address COVID-19-related workplace issues, providing the following guidance:

Disability-related inquiries and medical exams. When screening employees entering the workplace during this time, employers are not limited to asking employees about the COVID-19 symptoms identified by the EEOC as examples. 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.

Confidentiality of medical information. Q&As addressing the confidentiality of medical information explained the following:

  • 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, including 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.
  • An employer that requires all employees to have a daily temperature check before entering the workplace, may maintain a log of the results, but the employer needs to maintain the confidentiality of this information.
  • An employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.
  • A temporary staffing agency or a contractor that places an employee in an employer’s workplace may notify the employer if it learns the employee has COVID-19, and also disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.

Hiring and onboarding. The EEOC said that an employer may not postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19. The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer—but the employer may want to permit telework or discuss with these new hires whether they would like to postpone the start date.

Accommodation of pre-existing disability. The EEOC also addressed the scenario under which a job may only be performed at the workplace and whether there are reasonable accommodations for individuals with disabilities absent undue hardship that could offer protection to an employee who, due to a preexisting disability, is at greater risk from COVID-19. There may be reasonable accommodations 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 potential exposure. The EEOC noted that even given 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.

Low-cost solutions. 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. The EEOC also stressed the importance of employers and employees being flexible in determining whether an accommodation is possible in the circumstances. To permit an individual with a disability to perform the essential functions of the job safely while reducing exposure to others in the workplace or while commuting, consider:

  • Temporary job restructuring of marginal job duties;
  • Temporary transfers to a different position;
  • Modifying a work schedule or shift assignment.

Exacerbated mental illness or disorder. As to whether an employee with a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic may be entitled to a reasonable accommodation, the EEOC noted that 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 is the case 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.

Accommodations needed after teleworking ends. In a workplace where all employees are required to telework during this time, an employer should not necessarily postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision, and if a reasonable accommodation is granted, may be able to make some arrangements for the accommodation in advance.

Additional or altered accommodation. The EEOC said that an employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what the employee uses in the workplace. Here, the employer may discuss with the employee whether this new request is based on the same or a different disability, and why an additional or altered accommodation is needed.

Other resources. The EEOC has provided resources on its website related to the pandemic in an employment context and will continue to monitor developments and provide assistance to the public as needed.

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