This post has been updated to reflect additional guidance issued by the U.S. Equal Opportunity Employment Commission ("EEOC") on June 17, 2020.
The EEOC has provided employers with supplemental guidance on navigating the COVID-19 outbreak, addressing issues such as COVID-related harassment and screening employees who report to work.
The EEOC reminded employers that while the anti-discrimination laws, including the Americans with Disabilities Act ("ADA") and the Rehabilitation Act, continue to apply during the COVID-19 pandemic, these laws do not interfere with, or prevent employers from following, the guidelines and suggestions issued by the CDC or state and local public health authorities regarding COVID-19.
The EEOC's new guidance addressed and clarified the following questions:
Employee Medical Information
- Employers may screen employees who enter the workplace, and should rely on the CDC, other public health authorities, and reputable medical sources for guidance on symptoms associated with the disease. 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. This information may guide employers with respect to choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. If an employee entering the workplace requests an alternative method of screening due to a medical condition, the employer should treat this request as a reasonable accommodation request under the ADA or Rehabilitation Act. If the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process. Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability and what specific limitations require an accommodation, and request supporting medical documentation. Similarly, if an employee requests an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.
- An employer may not exclude an employee from the workplace solely because the employee has a medical condition that puts the employee at a higher risk for severe illness due to COVID-19. Under the ADA, an employer can only take such an action if the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced with a reasonable accommodation. The guidance notes that the “direct threat” requirement is a high standard to meet, and the employer must show that the employee has a disability that poses a “significant risk of substantial harm” to his or her own health. An employer would be required to make an assessment, beyond the employee having a medical condition on the CDC list, that includes the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Even if the employer can show the employee is a “direct threat” to his or her own health, the employer still cannot exclude the employee unless, after engaging in the interactive process with the employee and considering all options (e.g. telework, leave, reassignment), there is still no effective reasonable accommodation.
- Employers may also administer COVID-19 tests to detect the presence of the COVID-19 virus before permitting employees to enter the workplace, as long as the testing is job-related and consistent with business necessity (i.e., an individual with the virus would pose a direct threat to the health of other employees). 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.
- Employers may not require antibody testing before employees re-enter the workplace. Under the ADA, antibody testing is considered a medical examination and the testing currently does not meet the ADA’s standard of being “job related and consistent with business necessity.” The EEOC has noted the difference between an antibody test and a test to determine if someone has an active case of COVID-19 (i.e., a viral test). COVID-19 viral tests are permissible under the ADA.
- The ADA requires that all medical information about an employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store medical information related to COVID-19 (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) in existing employee medical files, so long as access is limited in accordance with the requirements of the ADA.
- If an employer requires all employees to have a daily temperature check before entering the workplace, the employer may keep a log of the results as long as the information is stored in a manner that maintains confidentiality (see above).
- While there is no general requirement for employers to report cases of COVID-19 among its workforce, an employer may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19. Similarly, 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 because the employer may need to determine if the employee had contact with anyone in the workplace.
Reasonable Accommodations Relating to COVID-19
- Employers may invite employees to request reasonable accommodations prior to returning to the workplace, even if there is no set date to return to work. The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact – if they wish – to request accommodation for a disability that they may need upon return to the workplace. If requests are received in advance, the employer may begin the interactive process. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.
- Alternatively, an employer may send a general notice to all employees who are designated to return to the workplace, noting that the employer is willing to consider requests for accommodation or flexibility on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities. Both approaches are consistent with the ADEA, ADA, and CDC guidance. However, it is important that the individual receiving the accommodation requests, in either approach, is able to handle them consistently with federal discrimination laws.
- An employer may not postpone a start date or withdraw a job offer because the individual being hired is 65 years old or pregnant, which would place them at higher risk from COVID-19. However, an employer may allow or require telework or discuss with these individuals if they would like to postpone the start date.
- The ADEA prohibits employment discrimination against individuals age 40 and older. The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19. Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers age 40-64 being treated less favorably in comparison.
- If a job may only be performed at the workplace, there may be reasonable accommodations for individuals with disabilities who are at a higher risk from COVID-19 which allow them to perform the job. Accommodations for workers 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. Temporary restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform the essential functions of the job while reducing exposure to COVID-19.
- An employee with an underlying condition that puts the employee at a higher risk for severe illness as a result of COVID-19 must inform the employer, either directly or through a third party representative (such as a doctor), that he or she requires a reasonable accommodation for the underlying condition. The employee or representative should communicate to the employer that the employee has an underlying condition that necessitates a change to meet a medical need. An employee or representative may request a reasonable accommodation in conversation or in writing, but using the term “reasonable accommodation” in this communication is not required. As discussed below, an employer may ask follow up questions or request medical documentation.
- Employers should treat accommodation requests from employees with preexisting mental health conditions the same as they would with any accommodation request – for example, by asking questions to determine whether the condition is a disability; discussing how the requested accommodation would assist the employee; exploring alternative accommodations that may meet the employee’s needs; and requesting medical documentation if needed.
- Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace reopens. Employers should not postpone making a decision on an accommodation that will not be needed until an employee returns to the workplace (after teleworking ends), but rather should begin discussing the request now in an effort to acquire the information needed to make a decision. However, an employer may prioritize requests for accommodations that are needed while teleworking.
- If an employee requests an accommodation for a medical condition either at home or in the workplace, an employer may ask questions or request medical documentation (if it is not obvious or already known) to determine whether the employee has a "disability" as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment).
- An employer may still engage in the interactive process and request information from an employee about why an accommodation is needed (if it is 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: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the "essential functions" of his position (that is, the fundamental job duties).
- Temporary reasonable accommodations are permissible, and employers may shorten the interactive process. In addition, 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 choose to place an end date on the accommodation (e.g., either 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 in workplaces). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of 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 preexisting disability that puts her at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.
- 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.
- An employer may assess "significant difficulty" in acquiring or providing certain accommodations by 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 or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to 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.
- The sudden loss of some or all of an employer's income stream because of this pandemic is a relevant consideration in determining whether a reasonable accommodation may cause a “significant expense.” 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 with costs attached; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. For example, even under current circumstances, there may be many no-cost or low-cost accommodations.
- Accommodations that may eliminate or reduce a direct threat to self can include, for example: enhanced protective gowns, masks, gloves, erecting a barrier to provide separation between the employee with a disability and coworkers or the public, eliminating marginal (non-essential) tasks from the employee’s job duties, temporary modification of an employee’s work schedule, or moving the employee’s work location. While the guidance offers these examples, an effective accommodation will depend on the employee’s workplace and job duties. The employer and employee should discuss ideas that may work for them.
- An employer that provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, should not treat employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.
- Similarly, an employer may not exclude an employee from the workplace involuntarily due to pregnancy. Sex discrimination under Title VII includes discrimination based on pregnancy. Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough. The ADA provides protection for pregnancy-related medical conditions – if an employee makes a request for a reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules. Further, the Pregnancy Discrimination Act requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.
- 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 bases. The EEOC has resources to assist employers in this area, including anti-harassment tools provided by the EEOC for small businesses.
Return to Work
- Employers will be acting consistent with the ADA as long as any screening implemented upon employees’ return to work is consistent with advice from the CDC and public health authorities for that type of workplace at that time.
- This may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return by certain types of critical workers.
- Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.
- An employer may require employees to wear protective gear (e.g., masks and gloves) and observe infection control practices (e.g., 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.
March EEOC Q&A Guidance
Prior to issuing this supplemental guidance, the EEOC hosted a March webinar in which the agency answered questions about the applicability of the ADA and Title VII to COVID-19-related employment actions. The EEOC updated its previously published guidance entitled “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act” to provide information and examples regarding COVID-19. This guidance confirmed that COVID-19 constitutes a “direct threat” and a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace. Employers should follow the EEOC guidance in conjunction with the guidelines and suggestions made by the CDC and state/local health authorities.
The guidance answered common employer questions about the COVID-19 pandemic's relation to the ADA, such as:
Q: 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?
A: ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus 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. Employers generally may not ask these questions of employees who are teleworking since they are not entering the workplace and do not pose a threat to others.
We note, however, that if an employee recently started teleworking, employers may want to ask the employee if they exhibited symptoms of COVID-19 before starting telework, so the employer can inform those with whom the employee had been in close contact about the potential exposure.
Q: What if an employee refuses to answer COVID-19 related questions by the employer?
A: The ADA allows employers to bar an employee’s physical presence in the workplace if he or she poses a threat to others. Employers should ask for the reason behind the employee’s refusal and reassure the employee if the employee is hesitant to provide this information.
Q: When may an employer take an employee’s temperature during the COVID-19 pandemic?
A: Generally, taking an employee’s temperature is a medical examination under the ADA. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, employers may take employees’ temperature. However, employers should be aware that some people with COVID-19 do not have a fever, while some people with a fever do not have COVID-19.
Employers, however, are well-advised to first consult with counsel to ensure the administration of these tests stays within the guidance and does not otherwise violate applicable law.
Q: Can an employer ask COVID-19 related questions about an employee’s family members?
A: This unnecessarily limits the inquiry. A better question is whether the employee has had contact with anyone diagnosed with COVID-19 or who was showing symptoms of COVID. A general question like this is more sound. The Genetic Information Nondiscrimination Act ("GINA") prohibits employers from asking employees medical questions about an employee’s family members.
Q: How are employers supposed to keep medical information of employees confidential while teleworking?
A: The ADA requires that medical information be stored separately away from other personnel files and employee information. A supervisor who receives this information while teleworking should follow normal company procedures to store this information. If they cannot follow the procedures for whatever reason, they should make every effort to safeguard the information from disclosure (for example, do not leave a laptop open or accessible to others; do not leave notepads with information around the home, etc.).
Q: What are an employer’s ADA obligations when an employee says he has a disability that puts him at a greater risk of severe illness if he contracts COVID and therefore asks for a reasonable accommodation?
A: The CDC has identified certain conditions (for example, lung disease) that put certain people at a higher risk for severe illness if COVID-19 is contracted. Thus, this is clearly a request for a reasonable accommodation and a request for a change in the workplace. Because employers cannot grant employees reasonable accommodations for disabilities that they do not have, employers may verify that the employee has a disability, what the disability is, and that the reasonable accommodation is necessary because the disability may potentially put the individual at a higher risk for severe illness due to COVID-19.
There may also be a situation in which the employee’s disability is exacerbated by the current situation. The employer may verify this as well. Aside from requesting a doctor’s note, other options to verify an employee’s disability may be to request insurance documents or their prescription. An employer may want to provide a temporary reasonable accommodation pending receipt of the documentation.
Q: If an employer grants telework to employees with the purpose of slowing down/stopping COVID-19 – after the public health measures are no longer necessary, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who wishes to continue this arrangement?
A: No. Anytime an employee requests a reasonable accommodation, the employer has the right to understand and evaluate the disability related limitation and make a determination on the request. After the pandemic, a request to telework does not have to be granted if working at the worksite is an essential function of the job in normal circumstances (i.e. not during a pandemic). The ADA never requires an employer to limit the essential functions of a position, and just because an employer did this during the pandemic does not mean an employer has to permanently change the essential functions of a position, and is not an admission that telework is a feasible accommodation or that telework does not place an undue hardship on the employer.
Title VII Guidance
The guidance further addressed common COVID-19 questions related to discrimination and harassment under Title VII, such as:
Q: May an employer decide to layoff or furlough a pregnant employee who does not have COVID-19 or symptoms solely based on the CDC guidance that pregnant women are more likely to experience severe symptoms and should be monitored?
A: No, because pregnant employees are protected under the Pregnancy Discrimination Act of Title VII.
Q: May an employer exclude from the workplace an employee who is 65 or older and who does not have COVID, solely because he or she is in an age group that is at higher risk for severe illness as a result of COVID?
A: No, age based actions are not permitted. The Age Discrimination in Employment Act prohibits discrimination against those who are 40 or older.
Q: May an employer single out employees based on national origin and exclude them from the workplace due to concerns about possible COVID-19 transmission? May employers tolerate a hostile work environment based on an employee’s national origin or religion because others link it to the transmission of COVID-19?
A: No, because Title VII prohibits national origin discrimination. It does not matter that it is linked to COVID-19. Employers should remind employees of anti-discrimination and anti-harassment policies and also should ensure that they are not taking employment actions based on an employee’s protected class(es).
- An employer may make inquiries that are non-disability related to identify potential non-medical reasons for an employee’s absence or future absence. For example, an employer may ask a “yes” or “no” question that asks if the employee or someone in his or her household falls within the categories identified by the CDC for being at higher risk for severe illness if COVID-19 is contracted (such as pregnancy or being over the age of 65).
- An employer may also 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.
- While employers may require doctors’ notes certifying their fitness for duty before returning to work, as a practical matter, doctors and other health care professionals may be too busy during the pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches, such as requesting an employee’s prescription, may be necessary.
This is a challenging time and events are changing rapidly. EEOC guidance and interpretation of what is permissible under the ADA and Title VII is evolving and may continue to change as circumstances develop. We will update this post accordingly.