On April 9, 2020, the EEOC updated its March 17, 2020, what you should know about Covid-19 and the ADA, Rehabilitation Act, and other EEO laws document. I thought it would be a good idea to list the additions below and then discuss a bit. I’m only focusing on the additions since I covered the other stuff previously here. The categories A-E and the information in those categories are verbatim from the EEOC publication, which can be found here. The very last paragraph in each category contains my thoughts. At the end of §E, I have additional thoughts. Why this paragraph is in bold, I do not know.
A. Disability-Related Inquiries and Medical Exams
A.2. 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? (4/9/20)
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. 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.
My thoughts: What the EEOC is essentially saying here are a couple of things. First, know the medical science as best as you can. You might even want to consider having on retainer your own infectious disease specialist to give you another set of eyes with respect to what you are seeing from the CDC. Second, any disability related inquiries and medical exams need to be narrowly focused. The EEOC says as much in their technical assistance memorandum at §6.6. An excellent case for understanding how the disability related inquiries and medical exams need to be narrowly focused on the science is Scott v. Napolitano, 717 F. Supp. 2d 1071 (S.D. Cal. 2010).
B. Confidentiality of Medical Information
B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information? (4/9/20)
The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes 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.
B.2. If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results? (4/9/20)
Yes. The employer needs to maintain the confidentiality of this information.
B.3. May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19? (4/9/20)
Yes.
B.4. May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19? (4/9/20)
Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.
My thoughts: with Covid-19 being a direct threat, this view of the EEOC seems to be common sense.
C. Hiring and Onboarding
C.5. 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? (4/9/20)
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.
My thoughts: the best preventive law tool for figuring out whether attendance is an essential function of the job is the Samper case, which we discussed here. Also, be aware of ADEA (Age Discrimination in Employment Act), and PNDA (Pregnancy Nondiscrimination Act), here as well
D. Reasonable Accommodation
In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.
My thoughts: JAN is a great resource for both the employer and the employee.
D.1. If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities absent undue hardship that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19? (4/9/20)
There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.
Low-cost solutions achieved with materials already on hand or easily obtained may be effective. If not already implemented for all employees, accommodations for those 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.
Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job 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 safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.
My thoughts: Good stuff from the EEOC. I would be sure if you are on the employer side to put in language that any waiver of essential functions is temporary if you are going to be waving current essential functions of the job. Keep in mind, as the job evolves over time, a new job with its own essential functions may essentially arise. Definitely look for plaintiff lawyers and disability rights activist to claim that there is no reason why the accommodations shouldn’t continue. Many people with disabilities have been trying for years to get certain accommodation that are now being done as a matter of course for everyone. They will not willingly go back to the old system easily.
D.2. If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? (4/9/20)
Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.
As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.
My thoughts: interactive process!!!!!!!!!!!!!!!!!!!!!!!!
D.3. In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (4/9/20)
Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.
My thoughts: getting on top of reasonable accommodation/modification request as quickly as possible given the circumstances always make sense and prevents lawsuits later. When engaging in the interactive process, make sure you go about it the right way as we discussed here.
D.4. What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation? (4/9/20)
An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what he uses in the workplace. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.
My thoughts: the obligation to reasonably accommodate a qualified person with a disability continues during the pandemic. Also, the specific reasonable accommodations may vary depending upon context. So, this is really good stuff from the EEOC.
E. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics
E.1. What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic? (4/9/20)
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.
Practical anti-harassment tools provided by the EEOC for small businesses can be found here:
- Anti-harassment policy tipsfor small businesses
- Select Task Force on the Study of Harassment in the Workplace (includes detailed recommendations and tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated):
- report;
- checklistsfor employers who want to reduce and address harassment in the workplace; and,
- chart81of risk factors that lead to harassment and appropriate responses.
My thoughts: many courts have held, such as we have discussed here, that hostile work environment applies to persons with disabilities. So, just because everybody is working differently does not mean that the right of a person to be free from a hostile work environment doesn’t continue.
My overall thoughts on the amended guidelines:
- See this blog entry and this blog entry.
- Many companies seeing that remote working is not so bad, may move more in that direction. Good policy reasons exist for it. For one thing, I read in the Wall Street Journal not too long ago that employee turnover dramatically increases once they have to commute more than 30 minutes each way. Remote working solves that problem. Also, it takes many cars off the road. For example, I just read in the Wall Street Journal yesterday that the city of Los Angeles pollution problem has gone way down since the lockdown. Of course, there are drawbacks to remote working. It will be up to each employer to figure this out going forward. Nevertheless, people with disabilities are going to remember all the accommodation that employers put in place during this pandemic and will keep that in mind as they go about making future reasonable accommodation requests. Certain professions lend themselves to remote working while others don’t. For example, lawyers easily lend themselves to remote working, especially those who do not litigate. However, the healthcare professions frequently do not. Again, I don’t think you can go wrong with following Samper whenever you are trying to assess whether attendance is an essential function of the job.
- What about the situation where a person associates with an individual (let’s say significant other), who has a higher chance of getting Covid-19 and that person requests an accommodation so as to not expose or increase the risk of his or her significant other to getting Covid-19. While it is absolutely true that a person requesting an accommodation because they associate with an individual with a disability is not entitled to that accommodation, it is also true that many courts are saying a denial of such an accommodation or a refusal to even engage in the interactive process is evidence of the mindset of the employer’s intent to discriminate.
- Remember, that for a regarded as claim all you need is a perception of the physical or mental impairment. You do not need to show anymore that the employer subjectively perceived a substantial limitation on a major life activity thanks to the amendments to the ADA. An employer does have a little play here because of Covid-19 being a direct threat. However, you can’t forget about regarded as. Engaging in the interactive process solves all kinds of problems. So, interactive process!!!!!!!
- If you are making disability related inquiries or doing medical exams, make sure they are narrowly focused on Covid-19 identification and transmission. If you go on a fishing expedition beyond that, trouble will likely ensue per Scott and EEOC’s TAM6.
- A person with Covid-19 if they are symptomatic may well be a person with an actual disability depending upon the severity of the symptoms. Also, a person who had Covid-19 may also be a person with a record of a disability, again depending upon the severity of the symptoms. Finally, having Covid-19 may lead to other disabilities. In all cases, you may see request for reasonable accommodations. If so, be sure to engage in the interactive process.
- If you are trying to extrapolate this guidance to title II and title III situations, be aware that the technical assistance memorandums for both of those titles also demand that medical exams and disability related inquiries be narrowly focused.