EEOC Guidance for Employers during the COVID-19 Pandemic
The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its previously published pandemic guidance, “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act”, to incorporate new information for employers regarding the COVID-19 pandemic.
Additionally the EEOC has released updates to its publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to provide supplemental guidance to employers on COVID-related workplace issues.
The EEOC is the federal agency that enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA), the Rehabilitation Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act.
The ADA and the Rehabilitation Act regulations are applicable during the COVID-19 pandemic and do not interfere or prevent employers from following the guidelines and suggestions made by the Centers for Disease Control and Prevention (CDC) or state, local public health authorities regarding steps employers should take to protect workplace safety during the COVID-19 pandemic.
As guidance from the CDC and public health authorities continues to change in response to new information about COVID-19, employers should follow the most current public health information for maintaining workplace safety while maintaining compliances with EEOC anti-discrimination laws.
The following questions and answers are excerpted from the EEOC guidances for employers regarding EEO laws and COVID-19 issues in the workplace.
Hiring and Onboarding
If an employer is hiring, may it screen applicants for symptoms of COVID-19?
Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
May an employer 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?
No. 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. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.
Return to Work
How will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace?
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 is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent 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 time.
Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.
An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests?
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.
Harassment
What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic?
Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited basis.
Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace?
Yes. 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.
Reasonable Accommodation
As noted in the Pandemic Guidance, generally, the ADA requires employers to provide reasonable accommodations for known limitations of applicants and employees with disabilities.
A “reasonable accommodation” is a change in the work environment that allows an individual with a disability to have an equal opportunity to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment.
An accommodation poses an “undue hardship” if it results in significant difficulty or expense for the employer, taking into account the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business. If a particular accommodation would result in an undue hardship, an employer is not required to provide it but still must consider other accommodations that do not pose an undue hardship.
An adequate discussion of reasonable accommodation in the work environment requires an understanding of various scenarios and recommendations. Such discussion would be best served in reviewing the full text of reasonable accommodation guidance in context of COVID-19, the ADA, the Rehabilitation Act, and other EEO laws as found on the EEOC’s website.
Disability-Related Inquiries and Medical Exams
How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19?
As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. 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.
When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty?
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) 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.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take 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. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.
Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular hand washing, and other measures) in the workplace to prevent transmission of COVID-19.
In review, EEOC employer guidances for workplace safety during the pandemic should be read in their entirety on the EEOC website. The above material is for informational purposes only and employers should conduct their own due diligence on best practices for workplace safety during the pandemic. Legal counsel may be appropriate for policy formation and compliance requirements.