On April 9, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which addresses frequently asked questions from employers regarding compliance with various employment laws during the pandemic. Specifically, the EEOC provides guidance with respect to maintaining medical records, screening employees, providing accommodations, hiring employees and preventing pandemic-related harassment and discrimination.
Medical Inquiries, Examinations, and Information
The EEOC clarified that employers may ask employees if they are experiencing symptoms of COVID-19 and may take an employee’s temperature as provided by the Centers for Disease Control and Prevention (“CDC”). Further, employers can require an employee who has symptoms of COVID-19 to leave the workplace and stay home. Additionally, an employer may require an employee returning to work after being out for COVID-19 symptoms to provide a physician’s note certifying fitness for duty; however, employers should be aware that this may not be practical due to the current busyness of health care professionals. Accordingly, employers should be willing to accept other types of documentation, such as e-mails, indicating the employee does not have the virus. Medical information obtained by the employer, including the employee’s temperature or an employee’s self-identification of having the virus, should be kept separate from the employee’s personnel file but may be stored in an existing medical file.
The EEOC also stated that an employer may disclose the name of an employee who has COVID-19 to a public health agency. Similarly, a temporary staffing agency or contractor that places an employee in an employer’s workplace may notify the employer if it learns the employee has the virus.
Hiring and Onboarding
The EEOC made clear that an employer can take an applicant’s temperature as part of a pre-employment medical examination provided that the employer has made a conditional job offer to this individual. Likewise, an employer can screen applicants for symptoms of COVID-19 after making a conditional job offer; however, the employer must screen all entering employees in the same type of job or position.
If an applicant has COVID-19 symptoms, an employer can delay the start date of the applicant or withdraw the job offer if the employer needs the applicant to start immediately. However, an employer cannot withdraw a job offer solely on the basis that the individual is at a high risk for the virus, such as individuals 65 years old or older or pregnant women. According to the EEOC, the employer is permitted to ask the high-risk individual whether they would like to telework or postpone their start date.
The EEOC also provides guidance in accommodating individuals with preexisting disabilities who are at a higher risk from COVID-19 but whose jobs can only be performed at the workplace. The EEOC suggests an employer can reduce an employee’s contact with others by making changes to the work environment by using plexiglass, tables or other barriers to ensure minimum distance between customers and/or co-workers. The EEOC also suggests providing flexibility to employees through temporary job restructuring of marginal job duties, temporary transfer to a different position, or modification of a work schedule or shift assignment in an effort to permit an individual with a disability to perform safely the essential functions of the job while reducing exposure in the workplace or while commuting.
Moreover, if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an altered or additional accommodation, the employer may discuss with the employee whether the same or a different disability is the basis for the new request and why an additional or altered accommodation is needed. Absent an undue hardship, the employee may be entitled to the additional or altered accommodation.
With respect to employees that are currently teleworking as part of a mandatory teleworking policy but may need a reasonable accommodation upon return to the workplace, the EEOC urges employers to engage in the interactive process now; therefore, if a request for an accommodation is granted, the employer can make some arrangements for the accommodation in advance.
The EEOC recommended employers explicitly communicate to their workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of protected characteristics, such as race or national origin. The EEOC also cautioned employers that pandemic-related harassment due to national origin, race or other protected characteristics may arise in the workplace.
Takeaway for Employers
Although the EEOC provides specific support for following the CDC’s guidelines such as taking an employee’s or job applicant’s temperature or asking an employee whether they have symptoms related to COVID-19, the EEOC also made clear that the on-going pandemic does not void an employer’s obligation to comply with the ADA and other anti-discrimination laws. For instance, employers are still required to provide an employee with a reasonable accommodation if there is no undue hardship. Employers are still obligated to engage in the interactive process with employees, request medical support if needed, and document discussions related to the interactive process. Additionally, employers still must ensure their workforce does not engage in pandemic-related harassment whether its employees are teleworking or in the workplace. Finally, employers should be on the lookout for additional guidance on the interplay between CDC recommendations and the various disability and discrimination laws since the recommendations may change as the pandemic evolves.
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Putney, Twombly, Hall & Hirson LLP