As everyone knows, I rarely post to blog entries in a week. However, there are exceptions. The EEOC has updated their guidance on the pandemic twice since we last wrote, including yesterday. So, I thought it would be a good time to go over the paragraphs of the EEOC guidance that we have yet to cover. The way this blog entry will proceed is that I am listing the paragraphs verbatim we have yet to discuss. Underneath each of the EEOC paragraphs, I have my thoughts. At the very end, I have additional thoughts as well.

 

A.6.   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? 4/23/20

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 handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

 

My thoughts:

  1. In this particular section, EEOC does not say what job-related and consistent with business necessity actually means. Those are two concepts we have discussed quite often in our blog, including here.
  2. While an employer may choose to administer Covid-19 testing to employees before they enter the workplace to determine if they have the virus, employers do need to ensure that the tests are accurate and reliable. That may be a dicier proposition than you might think.
  3. The EEOC also cautions that employers may wish to consider the incidence of false positives and false negatives associated with the particular test. The clear implication there is getting into a regarded as situation or even creating a record of disability where none actually exists.
  4. The EEOC also notes that accurate testing only reveals if the virus is currently present and not whether the employee will get it later.
  5. Employers must have employees observe infection control practices.

D.6.  During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed? (4/17/20)

Yes, 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).

My thoughts:

  1. Essential job functions are the fundamental job duties.
  2. What the EEOC is talking about in this section should already be happening long before Covid-19.
  3. If the disability is obvious or already known, this guidance suggests that you may be much more limited as an employer in what you can ask or seek by way of medical documentation in those cases. We have seen this type of strategy with respect to service animals and the DOJ final implementing regulation where if the disability is obvious or known you do not get to ask the two inquiries.

D.7.  If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)

Yes.  Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” (discussed in D.5 and D.6., above) and grant the request.  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 (for example, 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 who may congregate). 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 pre-existing disability that puts her at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.

My thoughts:

  1. With respect to temporary accommodations, this is something I see quite a bit at colleges and universities where a temporary accommodation will be given until the process can be worked out.
  2. The interactive process should always be fluid and not just a one time thing.
  3. Once an accommodation is given, be absolutely sure an interactive process occurs before taking the accommodation away or giving a new accommodation.
  4. Employers can always opt to provide a requested accommodation on an interim or trial basis with an end date while awaiting receipt of medical documentation. Be careful not to request excessive medical documentation. Also, be sure to engage in the interactive process throughout the trial period and especially when the trial period ends.
  5. I look for lots and lots of issues with employers with respect to employees with pre-existing disabilities that put them at greater risk during the Covid-19 pandemic. Also, same goes for employees that had Covid-19 and have recovered.
  6. Know how to go about the interactive process as we discussed in this blog entry.
  7. If you are doing reasonable accommodations on a trial basis, be sure to stay on top of that. Also, do not get trapped by fixed deadlines. If you are not sure if it is working out, nothing wrong with extending the deadline. Also, pay attention to the medical science.
  8. An employer is under no obligation to waive an essential function of the job. If an employer due to Covid-19 pandemic decides to waive an essential function of the job because the context has changed so dramatically, be sure to let the employee know that this waiver is not a permanent situation. Also, if you do that, be prepared for the employee later to claim that his or her job has evolved so that they can perform the essential functions of the job with or without reasonable accommodations. In short, this is a good time for the employer to be reassessing just what are the essential functions of the job.
  9. A personal preference is not the same thing as an essential function. For example, many people may prefer the interpersonal contact of being in an office. However, their job may be such that the essential functions can be done anywhere. So, if an employer were to insist on coming into the office when the essential function could be done anywhere, that does create an ADA compliance issue.

D.8.  May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace? (4/17/20)

Yes.  Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens.  Employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.

My thoughts:

  1. A person with Covid-19 may very well have a disability.
  2. A person who has recovered from Covid-19 may very well have a record of a disability and possibly other disabilities as well.
  3. As we have discussed numerous times in our blog, such as here, magic words are not required to start the interactive process.

D.9.  Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship? (4/17/20)

Yes.  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.

My thoughts:

  1. An employer never has to provide an accommodation if it is an undue hardship.
  2. Undue hardship can either be logistical or financial.
  3. “Significant difficulty or expense”, is actually a term of art in ADA jurisprudence. So, don’t take that literally. In the world of the ADA, financial undue hardship is very difficult to show, such as we discussed here, though it may be slightly easier now in light of the financial hit being caused by the Covid-19 pandemic. Remember, EEOC final regulations, 29 C.F.R. §1630.2(p)(2), require looking at the entire resources of the entity with respect to figuring out financial undue hardship.
  4. Logistical undue hardship, i.e. fundamental alteration, is also going to be much more complicated to determine with Covid-19 pandemic.
  5. It is certainly possible that what would not an undue hardship previously is one now. However, that may happen less than you might think.

D.10.  What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, 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.

My thoughts:

  1. Undue hardship considerations are always very fact specific. Again, as mentioned above, financial undue hardship looks to the entire resources of the entity.
  2. Logistical undue hardship looks to how the business operates.
  3. If the conclusion is reached that a proposed accommodation poses an undue hardship, do not forget about the interactive process so that it can be determined if there is in some accommodation that can be done that does not pose an undue hardship.

D.11.  What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant expense” during the COVID-19 pandemic? (4/17/20)

Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components).  But, the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.  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 that costs money; 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 very low-cost accommodations.

My thoughts:

  1. Absolutely true that the loss of some or all of an employer’s income stream because of Covid-19 is a relevant consideration when it comes to financial undue hardship.
  2. I am not sure I understand where the EEOC is going with respect to their view that it is relevant what the amount of discretionary funds available are when considering other expenses. Keep in mind, final federal regulations are always going to trump guidances as we discussed here.
  3. Generally speaking, the actual cost of accommodations I have seen go as high as $1400 on the high-end. Many are $500 or less. The vast majority of accommodations do not cost anything at all. Have those costs changed in light of Covid-19? Maybe but maybe not appreciably. It may depend on the specific accommodation.

D.12.  Do the ADA and the Rehabilitation Act apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC?

Yes.  These CDC designations, or any other designations of certain employees, do not eliminate coverage under the ADA or the Rehabilitation Act, or any other equal employment opportunity law.  Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee.  Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship.

My thoughts:

  1. The fact that a person is labeled by the CDC as a critical infrastructure worker or an essential critical worker has nothing to do with whether that individual is a qualified person with a disability under the ADA.
  2. A qualified individual with a disability on probation is also covered by the ADA.

E.2.  Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace? (4/17/20)

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.

My thoughts:

  1. This paragraph is straightforward, and I do not have anything to add to it. That said, even now, an employer still has to take steps to address possible harassment and discrimination against coworkers. As we have discussed here, hostile work environment has been held applicable to people with disabilities.

G. Return to Work

G.1.  As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace? (4/17/20)

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.

For example, 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.

My thoughts:

  1. Any medical exams must be reliable.
  2. Don’t go on fishing expeditions. That is, keep any inquiries and medical exams narrowly focused on Covid-19.
  3. Rely on the best available objective medical evidence. You might consider as an employer having your own infectious disease specialist on retainer as the guidances from various governmental entities and public health authorities can be all over the place. Certainly, start with CDC.
  4. Watch out for practices that screen out people based upon protected characteristics, including people with disabilities, in decisions relating to screening and exclusion.

G.2.  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? (4/17/20)

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.

My thoughts:

 

  1. It is entirely possible that protective gear may need to be modified for a person with a disability. Be sure to engage in the interactive process in that situation. For example, a lip reader like myself will have an incredibly difficult time trying to understand a person wearing a mask of some kind.
  2. Interactive process!!!!!!!!!!!!!!!!!!!

 

Other thoughts:

 

  1. Knowledgeable ADA legal counsel is more critical now than ever.
  2. If you are in a State that is arguably getting ahead of the science, you will need to think about all of this. You will also need to be thinking about business interruption insurance coverage being available in the event of a future shutdown if you reopen ahead of the science, OSHA, negligence, and many other laws as well.

 

Stay safe y’all.

One Response to EEOC and Covid-19 Part III

On May 5, the EEOC added three new sections to their pandemic guidance. With one glaring exception, there aren’t any surprises. I discuss each of those sections below.

G.3: If an employee has a medical condition that puts him or her at a higher risk for severe illness from Covid-19 and needs an accommodation, they have to let the employer know. After that, the employer can ask questions or seek medical documentation to help decide if there is a disability and if there is a reasonable accommodation that can be provided. This is all part of the interactive process.

Nothing surprising here. Be sure to keep your questions and your documentation request narrowly focused and reasonable in scope.

G.4: The surprise comes in this section. This section deals with a situation where the employer knows that an employee has one of the conditions that put the employee at higher risk of getting Covid-19, but the employee has not requested an accommodation. In this situation, the employer doesn’t have to do anything because they are not actually on notice that an accommodation is necessary. It is in the second paragraph where you find the surprise. More specifically, that paragraph states: “if the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee-or take any other adverse action-SOLELY because the employee has a disability that CDC identifies as placing him at higher risk for severe illness if he gets Covid-19.” I put “solely,” in uppercase for emphasis. In the actual document, the word appears in italics. This statement is absolutely shocking because as we have discussed numerous times in the blog it is far from certain that sole cause is the standard in title I matters. The only way this makes sense is if the paragraph is somehow referring to retaliation and not to traditional disability discrimination. Even there as we have discussed in our blog entries, sole cause is not necessarily the same thing as but for causation, which is the standard for retaliation claims. So, I am at a loss to explain what is going on here. The EEOC then goes on to mention that if any such action is going to be taken, a direct threat has to be shown. The next paragraph discusses what direct threat is and how it is a very high bar to reach. The last paragraph of the section talks about how everything short of direct threat must be done if there is a finding of direct threat. Finally, don’t forget about the interactive process.

G.5: This section basically says that accommodation can be just about anything. Interactive process and the job accommodation network are great tools for figuring it out.

For those who are serious practitioners of the ADA, nothing in this guidance with one very important exception surprises. With respect to that exception, sole causation, I just don’t understand where the EEOC was going with this. If on the defense side, I am certainly going to make use of this guidance to the court saying that the EEOC itself agrees that causation is sole cause. There are lots of ways the EEOC could respond to that argument, but taking this position in this guidance definitely makes their life more difficult in subsequent litigation.

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