The U.S. Equal Employment Opportunity Commission (EEOC) continues to update its guidance on the interplay of COVID-related issues and the Americans with Disabilities Act (ADA).
The EEOC added new FAQs on April 9 (view our summary) addressing issues of confidentiality, reasonable accommodation, hiring, and harassment. On April 17 and April 23, the EEOC added additional FAQs addressing numerous topics, including the permissibility of widespread COVID-19 testing for employees entering the workplace and additional topics involving requests for accommodations during the pandemic and other issues.
Return to Work Issues Including Medical Examinations
The EEOC guidance reiterates that the ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Medical 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. This may include taking temperatures and asking questions about symptoms (or requiring self-reporting) of employees entering the workplace.
The EEOC further stated in its April 23 guidance that employers may administer COVID-19 testing to employees “to determine if employees entering the workplace have COVID-19.”
Note that the EEOC’s guidance excludes reference to testing employees who are working from home. Similarly, the guidance does not address testing that does not detect the presence of active COVID-19 virus in an employee who is entering the workplace.
Employers planning to engage in such COVID-19 testing should take steps to ensure accuracy and reliability consistent with ADA standards. According to the EEOC, guidance from the U.S. Food and Drug Administration, the Centers for Disease Control and Prevention, and other public health authorities regarding safe and accurate testing should guide employers. The EEOC further states that employers should consider the incidence of false-positives or false-negatives associated with a particular COVID-19 test.
Additionally, employers may require employees who are returning to the workplace to wear personal protective gear. Employers must consider an employee’s request for accommodation based on disability (such as 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 religion (such as modified equipment due to religious apparel). The employer should discuss the request and provide the modification or a different modification if feasible and not an undue hardship.
The April 17 FAQs clarify that during the pandemic, if an employee requests accommodation of a disability either at work or at home:
- Employers can ask questions or request medical documentation to determine, if the employee is disabled under the ADA, if the disability is not obvious or already known. Employers also can ask questions or request medical documentation to determine, if not obvious or already known, whether accommodations are necessitated by the disability, including how the disability creates a limitation, how the requested accommodation will address the limitation, whether a different accommodation could address the limitation, and how the requested accommodation will enable the employee to perform essential functions of his or her job.
- Employers may “forgo or shorten” the interactive process and grant a short-term or temporary accommodation if there is an urgency to the request. The EEOC notes that as government restrictions are revised or lifted, accommodation needs may change and temporary accommodation requests may increase.
- Employers may set end dates to accommodations, such as a calendar date, or a date upon which the employee returns to the workplace from working at home due to changes in government restrictions. Employers must consider employee requests for extensions of an accommodation, especially if due to new or extended government restrictions.
- Employers also may provide accommodations on an interim or trial basis pending receipt of medical documentation, which may, according to the EEOC, be “particularly helpful” where the accommodation would help protect individuals with a “pre-existing disability that puts [him or] her at greater risk during this pandemic,” or an underlying disability “exacerbated by the pandemic.”
Employers also may ask employees with known disabilities to request now any accommodations that they believe will be needed when the workplace re-opens in the future, and may begin the interactive process with the employee about any such request.
An employer may deny accommodation requests that pose an undue hardship, meaning “significant difficulty or expense.” The EEOC notes that the pandemic can affect the existence of undue hardship; what may not have posed an undue hardship before may pose one. For example, it may be “significantly more difficult” to conduct a needs assessment or acquire needed items for an accommodation (particularly for employees who are teleworking), or to provide temporary work assignments or remove marginal functions. Before denying accommodation due to undue hardship, employers and employees should work together to determine if other accommodations exist that do not pose undue hardship.
The EEOC also appears to recognize that some employers may be facing economic hardship during the pandemic that could make the cost of an accommodation an undue hardship now, whereas it would not have prior to the pandemic. The EEOC cites the amount of discretionary funds available to the employer (considering other expenses) and when current restrictions on an employer’s operations are expected to be lifted (or new restrictions added) as relevant to cost vis–a-vis the undue hardship analysis. Employers undergoing economic changes cannot automatically reject any accommodation that involves an expense, however; the cost must be weighed against current budget and other factors.
The EEOC notes that employers can remind employees that it is against federal law to harass or discriminate against co-workers based on race, national origin, color, sex, religion, age, disability, or genetic information, and the employer will take appropriate action based on any such allegations. In particular, the EEOC suggests that employers remind supervisors and managers of their roles in monitoring for, stopping, and reporting such harassment or discrimination.