[This is an update to our March 27 post, which can be read here.]
On March 18, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance titled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act to account for the novel issues employers face in the wake of COVID-19. The guidance, originally written in response to the 2009 H1N1 outbreak, provides vital information to employers who seek to keep their workplaces safe within the bounds of the Americans With Disabilities Act (ADA). The complete guidance from the EEOC can be read here.
On April 9, 2020, the EEOC issued updated guidance to address further questions with respect to COVID-19 and the Federal Equal Employment Opportunity Laws, including requests for reasonable accommodations.
This bulletin highlights the key takeaways for employers from the new EEOC guidance.
As of March 2020, COVID-19 Is Categorized As A “Direct Threat” Under the ADA.
Under ordinary circumstances, the ADA prohibits employers from terminating an employee solely because the individual is disabled. However, one exception to this rule is where the employer deems an employee a “direct threat.” Per the Equal Employment Opportunity Commission (EEOC) regulations, a “direct threat” 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.” See 29 C.F.R. § 1630.2(r). The EEOC has explained, “The determination that a direct threat exists must be based on objective, factual evidence – not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes – about the nature or effect of a particular disability, or of disability generally.” Ordinarily, proof of “direct threat” is difficult for an employer to show.
However, based on guidance of the CDC and public health authorities, the EEOC has deemed that the COVID-19 pandemic meets the “direct threat” standard. The numerous restrictions on public gatherings and closure orders for businesses, schools, and large venues “manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”
With this context in mind, the updated EEOC guidance gives more flexibility to employers to keep their workplaces safe.
Employers Are Permitted To Take Employee Temperatures.
Typically, if an employer takes an employee’s temperature, it is considered a medical examination and under the ADA, medical examinations are only permitted in certain circumstances. However, because the Center for Disease Control (“CDC”) and state/local public health officials acknowledge community spread of COVID-19, employers are now permitted to take employees’ temperatures to determine whether they have a fever, and to keep a log of the employee’s temperature so long as the information is kept confidential. Employers are also permitted to take a job applicant’s temperature after a conditional offer of employment has been extended. However, the EEOC cautions employers that a fever does not always accompany a COVID-19 diagnosis.
Moreover, maintaining confidentiality of medical information is critical and employers must take steps to maintain the confidentiality of the fact an employee exhibited symptoms of COVID-19 or had a fever. The ADA requires employers to store all medical information separate and apart from the employee’s personnel file. The EEOC does not require employers to make new medical files and permits employee information concerning COVID-19 to be stored with the employee’s existing medical files.
Employers May Ask Employees Who Call In Sick If They Have Symptoms of COVID-19.
If an employee calls in sick or leaves work because he or she feels unwell, the employer is permitted to ask the employee whether he or she is experiencing any symptoms of COVID-19. The EEOC lists fever, chills, cough, shortness of breath, and sore throat as symptoms of COVID-19, however, the EEOC advises that information surrounding COVID-19 is changing rapidly and that employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on new symptoms associated with COVID-19. For instance, loss of sense of smell and taste, nausea, and other gastrointestinal problems are now recognized as symptoms of COVID-19. Once again, as with all medical information, employers must keep this information confidential.
Furthermore, an employer is permitted to require an employee to leave work or stay home from work if he or she is exhibiting symptoms of COVID-19. This action is not disability related so long as it is because of COVID-19.
Employers May Require a Doctor’s Note Before An Employee Returns To Work.
Employers may require a doctor’s note that certifies the employee’s fitness to return to work before any employee returns to work. However, the EEOC cautions that because of the pandemic, doctors may be too overwhelmed and busy to provide return-to-work documentation. As such, the EEOC advises employers to embrace new approaches such as relying on local clinics to provide a form, or even an e-mail to certify that an employee does not have COVID-19.
Job Applicants and COVID-19
After making a conditional offer of employment, employers may screen job applicants for symptoms of COVID-19. If an employer chooses to screen for COVID-19 symptoms, it must do so for all job applicants in the same type of job. Importantly, employers should not screen out individuals pre-offer, nor should employers include language in job postings or ask job interview questions that could be perceived as discriminating against any particular class of individuals (e.g., applicants who are perceived as being more high-risk for COVID-19 by virtue of a particular characteristic). Furthermore, an employer should not pick and choose which job candidates it evaluates for COVID-19. If an employer screens one incoming employee post-offer, it should screen all employees post-offer for the same job.
Because a job applicant cannot safely enter the workplace if he or she is diagnosed with COVID-19, if an applicant is diagnosed with COVID-19 or displays symptoms associated with the virus after an offer of employment is made, employers may delay the job applicant’s start date. If the employer needs the job applicant to start immediately, the employer may withdraw the applicant’s offer. However, an employer may not postpone a start date or withdraw an offer on account of the employee being 65 or pregnant, both of which place the individual at higher risk from COVID-19. An employer may choose to allow telework or ask the employee if he or she would like to postpone the start date.
Reasonable Accommodations
The updated guidance provides information on reasonable accommodation requests during the COVID-19 pandemic and the unique issues it presents. The EEOC clarified that if a job may only be performed at the workplace, there may be reasonable accommodations that could provide protection to individuals whose disability puts him or her at a higher risk from COVID-19. The EEOC provides the following examples as possible accommodations for employees who require reduced contact with others; designated one-way aisles, using plexiglass, tables, or other barriers to maintain minimum distances between other people
The EEOC also addresses the situation where an employee with a preexisting mental illness that has been exacerbated by the COVID-19 requests an accommodation. The EEOC confirmed that employers may inquire to determine whether the condition is a disability, discuss with the employee how the requested accommodation will assist him, explore alternative accommodations, and request medical documentation if needed.
If the employer’s workforce is entirely remote because of COVID-19, the employer should not necessarily postpone discussing a reasonable accommodation request from an employee that is not needed until the employee returns to the workplace. An employer may gave higher priority to an accommodation request that is needed to telework; however, the employer may begin discussing the accommodation immediately. Additionally, an employee who had a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional accommodation, absent undue hardship.
Conclusion
Notwithstanding the status of COVID-19 as a “direct threat,” employers should be cautious in implementing policies that monitor medical symptoms of their employees. It is critical that any such policies are free from discrimination, and uniformly applied.
