The Next Normal: A Littler Insight on Returning to Work – EEO Compliance

In the COVID-19 world we are in today, the U.S. Equal Employment Opportunity Commission (EEOC) has established new rules to help employers slow the spread of this devastating virus. While the EEOC has created new and more flexible rules of permitted employer conduct, the EEOC’s guidance has continued to evolve. As an example, the EEOC’s publication on What you Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,¹ is in its sixth iteration since the Commission initially published a set of Technical Assistance Questions and Answers on March 17, 2020.²

As employees return to work from furloughs and layoffs, multiple challenges will arise for employers. New workplace concerns and obligations include taking day-to-day actions to limit the spread of the virus, managing reasonable accommodation requests from those returning to the worksite and from those wanting to continue to work from home, and minimizing discrimination risks as employers pare down the size of their workforce based on today’s economic climate.

Setting the Stage

The EEOC first issued guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act in October 2009 after President Obama declared a National Emergency in response to the H1N1 influenza pandemic.³ Based on the 2009 guidance, less drastic steps were approved. As a precursor for future events, however, the EEOC explained that the guidance may be modified depending on the severity and pervasiveness of a pandemic, and that one might become so severe that employers’ interests in protecting themselves and their businesses from the spread of disease could outweigh employees’ rights under the ADA and other discrimination laws.⁴

On March 11, 2020, the coronavirus disease (COVID-19) was declared a pandemic. A “pandemic” is defined as an “epidemic occurring worldwide or over a very wide area, crossing international boundaries and usually affecting a large number of people.”⁵ One week later, on March 19, 2020, the EEOC re-issued the guidance based on the World Health Organization’s (WHO) pandemic finding.⁶ The EEOC has declared that the WHO, U.S. Department of Health and Human Services (HHS), and the Centers for Disease Control and Prevention (CDC) are the “definitive sources” of information about pandemics.⁷  

The EEOC underscores that the 2020 guidance focuses on “implementing strategies in a manner that is consistent with the ADA and with current CDC and state/local guidance for keeping workplaces safe during the COVID-19 pandemic,” and acknowledges that the guidance may change “as the COVID-19 situation evolves.”

As discussed below, based on the current pandemic finding, the EEOC clearly has permitted employers far more leeway than ever before in developing infection control strategies without violating federal discrimination laws. No one knows as yet how and when the pandemic will end, but the EEOC views the new rules as a temporary measure.

New EEOC Rules to Slow Spread of the Virus

As employers develop infection control strategies, the EEOC’s primary focus has been on the Americans with Disabilities Act (ADA), and this is the one area of EEO law in which the EEOC temporarily has applied different compliance standards. The EEOC has taken a completely different view of other EEO laws. The EEOC has cautioned against potential infection control strategies and conduct that may run afoul of the Age Discrimination in Employment Act (ADEA), Pregnancy Discrimination Act (PDA) and other discrimination laws. The EEOC has also reminded employers of practical tools available to address potential workplace harassment stemming from COVID-19.

General ADA Compliance

Based on the EEOC’s current view, it is “unclear whether COVID-19 is or could be a disability under the ADA.”⁸ Regardless, in relying on the findings of the CDC and others public health authorities, the EEOC has determined that “an employer may bar an employee with the disease from entering the workplace” because the COVID 19 pandemic meets the “direct threat” standard under the ADA, that is, “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”⁹ This determination has resulted in permitting employers significant leeway in developing infection control strategies without violating the ADA that would not be permitted in the absence of a pandemic.

Aside from the Pandemic Preparedness Guidance issued in March 2020, the EEOC provided additional guidance during a March 27, 2020 “outreach webinar,” coupled with “Technical Assistance Questions and Answers,”¹⁰ which were most recently updated in early May 2020. These temporary new rules, as discussed in these various EEOC communications, apply to day-to-day employment for both current employees and applicants, and allow employers to take actions that are normally not permitted, including:

• Asking employees who report feeling ill at work, or who call in sick, questions about their symptoms (e.g., fever, chills, cough, shortness of breath, sore throat, loss of smell or taste) to determine if they have or may have COVID-19, and barring them from the workplace if they refuse to answer;¹¹
• Permitting employers to send employees home or requiring employees to stay home if they have symptoms of COVID-19;¹²
• Measuring an employee’s body temperature (despite that some individuals with COVID-19 do not have a fever), and barring the employee if they refuse to have their temperature taken;¹³ and
• Administering a COVID-19 test to detect the presence of the virus before permitting employees to enter the workplace, but employers must ensure that the tests are “accurate and reliable.” (Note: Following issuance of the EEOC’s Technical Assistance Questions and Answers on April 17, 2020, the EEOC added a Q&A on April 23, 2020, permitting such testing, which illustrates that the EEOC rules are continuing to evolve.)¹⁴

The EEOC has underscored that employers are permitted to take similar actions involving applicants after making a conditional job offer so long as the process is done for all employees in the same type of job.¹⁵ Employers can even delay a start date for an applicant who has COVID-19 or symptoms associated with it, and withdraw a job offer when it needs an applicant to start immediately.¹⁶

Certainly one of the most notable aspects of the EEOC’s COVID-19 guidance is permitting across-the-board taking of temperatures and administering tests to detect the presence of the virus. As an example, in the EEOC’s view, measuring an employee’s body temperature is viewed as a “medical examination,” and during employment, the ADA generally prohibits disability-related inquiries or medical examinations “unless they are job-related and consistent with business necessity.”¹⁷ Thus, although the EEOC has permitted an exception to its normal rules on such “medical examinations,” the challenge for employers is that the EEOC has not provided any specific guidance on the protocols to be followed in taking an employee’s body temperature or administering a COVID-19 test, except reminding employers of the requirement to maintain the confidentiality of such records, which are viewed as medical records.¹⁸

The two major exceptions to confidentiality are: (1) an employer may disclose the employee’s name to a public health official when it learns that the employee has COVID-19, and (2) a temporary staffing agency or contractor may notify the employer if it learns that one of its employees has COVID-19.¹⁹

Unique Rules Dealing with Reasonable Accommodation

An employer’s obligation to make reasonable accommodations and engage in the interactive process remain in place based on EEOC guidance. The EEOC’s guidance on this issue, however, has continued to evolve as the agency attempts to balance ADA reasonable accommodation obligations with an employer’s concern about the “direct threat” to the employee’s health and others by returning an employee to the workplace.

The EEOC has addressed numerous issues involving reasonable accommodation in a COVID-19 work environment, including the following:

• If a job can be performed at the workplace only, the EEOC has recommended some accommodations on a temporary basis without causing an undue hardship, such as minor “low cost” physical alterations of the workplace (e.g., one-way aisles, using Plexiglas barriers) or temporary job restrictions on marginal duties, temporary transfers or modified work schedules.²⁰
• For employees required to telework, an employer should give “high priority” to reasonable accommodation requests needed while teleworking, but the employer can be proactive and discuss anticipated accommodations that may be needed when returning to work.²¹
• Employers are encouraged to be flexible in terms of requesting medical documentation and/or and engaging in the interactive process. This could include providing accommodations on a temporary basis, and even placing an “end date” on the accommodation.²² With respect to medical documentation, the EEOC has underscored, “for employers seeking documentation from a health care provider to support the employee's request, they should remember that because of the health crisis many doctors may have difficulty responding quickly. There may be other ways to verify the existence of a disability. For example, a health insurance record or a prescription may document the existence of the disability.”²³
• In making reasonable accommodations, the EEOC also has taken a more realistic view of “undue hardship” based on today’s economic climate, explaining that “an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now,”²⁴ and “the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.”²⁵ The EEOC’s technical guidance underscores that an employer can look to “current circumstances” in determining whether there may be “significant difficulty” in acquiring or providing certain accommodations, particularly for employees who may be teleworking. If a particular accommodation creates an undue hardship, employers and employees are encouraged to work together to determine whether an alternative “could be provided that does not pose such problems.”²⁶

The EEOC’s guidance on reasonable accommodation was updated on May 5, 2020, and supplemented on May 7, 2020, to specifically address concerns involving individuals with “higher risk of severe illness.” The agency has made a distinction in its approach depending on whether an employee is making a request for an accommodation based on being part of this “higher risk” pool as contrasted with an employer deciding to exclude such employees from the workforce.²⁷

In providing guidance on this topic, the EEOC again has looked to the CDC for guidance regarding those who are expressly identified has having underlying medical conditions creating “higher risk for severe illness.”²⁸

Assuming an employee in the “higher risk” group makes an accommodation request, the employer should follow the same approach, discussed above, regarding accommodation requests, whether it comes from the employee or a third party, such as the employee’s physician. After receiving a request, an employer can engage in the interactive process with the employee,

On the other hand, in the event an employer is considering keeping an employee out of the workplace because the employee is part of the “higher risk” group, the rules are far stricter. In short, the EEOC requires: (1) application of the “direct threat” standard; and (2) there must be an “individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or the best available objective evidence.”³⁰

Even assuming that an employee’s disability “poses a direct threat to his own health,” the EEOC expects employers to explore potential reasonable accommodations absent an undue hardship. The first goal is to find a way, through the interactive process, to return an employee to work while still performing the position’s essential functions. When those options are not available, an employer needs to consider other types of accommodations, such as telework, leave or reassignment.³¹ Barring an employee from the workplace must be viewed as a last resort, only when “the facts support the conclusion that the employee poses a significant risk of harm to himself that cannot be reduced or eliminated by reasonable accommodation.”³²

The EEOC has provided examples of potential accommodation to eliminate a potential “direct threat” to the affected employee in the “higher risk” group, which may include protective gowns, gloves and other protective gear, erecting barriers that provide separation, elimination or substitution of particular marginal functions, modification of work schedules or moving the location where the employee performs work.³³

Infection Control Strategies and Increased Discrimination Risks

The EEOC has placed limits on infection control to the extent that an employer’s actions unfairly discriminate against a protected group. As an example, merely because the CDC has identified those 65 years of age and older as being at a higher risk of severe illness if they contract COVID-19 does not justify excluding such workers from the workplace.³⁴ Similarly, despite that women who are pregnant also face a higher risk for severe illness does not justify the layoff or furlough of such workers.³⁵

In short, this guidance is consistent with the EEOC’s approach to those in the “higher risk” pool – an employer cannot make generalized assumptions in excluding employees in a protected group from the workplace.

Mistreatment and harassment of Asian Americans and others of Asian descent also has received widespread coverage in the press in recent months.³⁶ Based on these types of concerns, EEOC Chair Janet Dhillon has cautioned against mistreatment or harassment of Asian Americans and others of Asian descent, which can result in unlawful discrimination on the basis of national origin or race.³⁷ This is similar to the types of warning the EEOC issued in the aftermath of 9/11.³⁸

What’s on the Horizon?

Over the coming months, three primary challenges need to be carefully addressed: (1) the factors considered in returning a pared-down workforce to active employment for those currently on furlough or layoff status; (2) selection of employees for termination/reductions-in-force based on the financial needs of the business; and (3) new legal risks that may arise when a vaccine is developed to fight COVID-19 in the event that employers request and/or demand employees to get vaccinated as part of its infection control strategy, and employees object and/or refuse to get vaccinated based on religious, medical or other grounds.

Employee Selection in a Changed Economic Climate

Whether an employer is deciding which employees to return from a layoff or furlough or selecting employees for layoff based cutting back on the size of the workforce, the same basic guidelines apply. Specifically, employers need to focus on job-related criteria concerning the needs of the employer’s business.

In the decision-making process, it will be helpful if an employer documents the applicable skill sets, experience, and work records of the applicable employee pool for either return to employment or termination in the event of job reductions. Relative rankings in such circumstances may be helpful, particularly because employers frequently eliminate employees with otherwise satisfactory work records. Objective factors certainly are most defensible, and care must be taken regarding any subjective criteria relied on in the employee selection process. A privileged review of proposed selection decisions prior to any final decisions may help minimize employer risks at a later date. Documenting the rationale for the employer’s final decision and the selection or de-selection of the applicable employees may be critical in the event the employer’s decision making is challenged through a subsequent discrimination charge or related lawsuit by a disgruntled employee.

Employers also need to be prepared for a potential significant spike in discrimination charges and related lawsuits over the coming months. As most employers are aware, on May 8, 2020, the U. S. Bureau of Labor Statistics announced that the unemployment rate had increased to 14.7 percent,³⁹ which is the highest rate of unemployment in this country since the Great Depression.⁴⁰

There clearly appears to be a direct correlation between the level of unemployment in the U.S. and the number of discrimination charges filed against employers. In looking back over the past 15 years, prior to the surge of unemployment based on COVID-19, the highest level of unemployment in the U.S. occurred in 2010 and 2011.⁴¹ Similarly, the highest number of discrimination charges filed with the EEOC in the past 15 years occurred in fiscal years 2010 and 2011.⁴² Individuals who face little prospect of alternative employment when their jobs are eliminated clearly will “second guess” employer actions. Thus, in order to help reduce employer risks in such circumstances, it is absolutely critical for employers to have appropriate documentation in the event an employer’s actions are challenged.

The New Frontier—Employee Vaccinations

The employment setting has changed as we know it. Returning to work will involve the implementation of a new “normal” for both employers and employees. The discussion surrounding employee vaccinations is a delicate one that raises many potential issues that may implicate employer liability under the Americans with Disabilities Act, the Pregnancy Discrimination Act, and Title VII.

To date, there is no publicly available vaccine for COVID-19, but that day will come. When that happens, will employers be permitted to compel employees to get vaccinated, regardless of medical conditions or religious beliefs during this pandemic? The Pandemic Preparedness Guidance, re-issued on March 21, 2020, contains a question on whether an employer covered by the ADA and Title VII may compel all of its employees to take the influenza vaccine “regardless of their medical conditions or religious beliefs.” The EEOC directly responded, “No.”⁴³ At the time, the EEOC raised concerns under both the ADA and Title VII.

Under the ADA, an employee with a qualified disability may be entitled to an exemption from a mandatory vaccination requirement if the qualified disability prevents the employee from taking a vaccine. According to the EEOC, allowing an exception to such a requirement would be considered a reasonable accommodation, barring any undue hardship to the employer, such as significant difficulty or expense to the employer.⁴⁴

An employer will also face challenges under Title VII for employees with sincerely held religious beliefs, practices, and/or observances that prohibit specifically sourced vaccinations. If an employer receives notice that an employee’s sincerely held religious beliefs, practices, and/or observances prevent the employee from taking a vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship, i.e., “more than de minimis cost” to the operation of the employer’s business. Even though under Title VII the “undue hardship” standard is lower than the standard under the ADA, this will still create risks for employers that implement a blanket vaccination mandate.

Given the uncertainties and the multiple statutes that are implicated, the EEOC guidance urges employers to simply encourage employees to get vaccinated, as a blanket mandate may pose a significant risk to employers. Whether the increased health risks posed by COVID-19 and the current determination that the pandemic meets the “direct threat” standard may change the permitted approach in making reasonable accommodations in the event that an employee refuses to be vaccinated, remains unsettled. Employers will need to closely monitor this evolving area of the law.

Conclusion

While COVID-19 was declared a pandemic less than two month ago (i.e., March 11, 2020), workplaces literally have been transformed. Employers are scrambling to adapt to these changes and figuring out what the “next normal” of employment will look like.

There is a delicate balancing act between infection control strategies and compliance with our discrimination laws. Employers clearly face significant risk when making generalized assumptions based on an employee’s protected status, such as individuals 65 years of age and older or pregnant workers. While the EEOC has provided guidance on which employers are given greater flexibility under the ADA because the COVID-19 pandemic meets the “direct threat” standard, employers still must take care in making generalized assumptions in excluding employees from the workplace. Making “individualized assessments” based on “reasonable medical judgments” is the recommended guide for employer actions in this evolving area of the law. As significantly, when faced with reductions in force and job eliminations, employers need to focus on legitimate business reasons to minimize the risk of discrimination claims in the new economic climate we will be living in for the foreseeable future.

Footnotes