Last week, the EEOC updated Covid-19 publication. What I have done here is list the EEOC update verbatim with respect to the material that we have not covered before. At the end of each section that is new (don’t worry about the numbers that appear in the hyperlink sections of the EEOC document as that it just the way it gets formatted when I cut and pasted), I give my thoughts and takeaways. For my Jewish brethren, happy new year. It is going to be a strange new year as most of us will not actually be going to synagogue and doing it, if at all, virtually.

A. Disability-Related Inquiries and Medical Exams

The ADA has restrictions on when and how much medical information an employer may obtain from any applicant or employee. Prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category. Once an employee begins work, any disability-related inquiries or medical exams must be job related and consistent with business necessity.

A.6.  May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) 29when evaluating an employee’s initial or continued presence in the workplace? (4/23/20; updated 9/8/20 to address stakeholder questions about updates to CDC guidance)

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 screening steps to determine if employees entering the workplace have COVID-1930168119117 because an individual with the virus will pose a direct threat31169120118 to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC32170121119 or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.

Consistent with the ADA standard, employers should ensure that the tests are considered accurate and reliable. For example, employers may review information33171122120 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. Because the CDC and FDA may revise their recommendations based on new information, it may be helpful to check these agency websites for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Note that a positive test result reveals that an individual most likely has a current infection and may be able to transmit the virus to others. A negative test result means that the individual did not have detectable COVID-19 at the time of testing.

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.

Thoughts/Takeaways:

1. Covid-19 is a direct threat per the ADA.
2. CDC guidelines can be a bit all over the place. You may want to consider having your own infectious disease specialist on retainer especially since the EEOC says that the CDC guidance meets ADA’s business necessity standard.
3. Any test used must be accurate and reliable, which is very much an open question.
4. Infection control practices are always a good idea.

Note: Question A.6 and A.8 address screening of employees generally. See Question A.9 regarding decisions to screen individual employees.

A.8.  May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 1)

Yes. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. The CDC has identified a current list of symptoms37172123121.

An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace because, as EEOC has stated, their presence would pose a direct threat to the health or safety of others. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions.

Thoughts/Takeaways:

1. Nothing wrong with asking all employees physically entering the workplace if they have Covid-19 or symptoms associated with Covid-19. Also, nothing wrong with asking all employees if they have been tested for Covid-19. Considering the unreliability of tests and the shortage of testing in many states, this may be a better approach.

A.10.  May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (9/8/2039; adapted from 3/27/20 Webinar Question 4)40

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking an employee about his contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.

Thoughts/Takeaways:

1. This answer is pretty straightforward.
2. It isn’t only the ADA that has to be worried about in dealing with these kind of issues. Other laws, such as but not limited to the Genetic Information Nondiscrimination Act, must be worried about as well.

A.11.  What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (9/8/2041; adapted from 3/27/20 Webinar Question 2)42

Under the circumstances existing currently, the ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19. To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. The employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The ADA prohibits such broad disclosures. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.

Thoughts/Takeaways:

1. A person refusing to allow an employer to take his or her temperature or refusing to answer questions about whether he or she has Covid-19, symptoms, or has been tested for Covid-19 can be barred from the workplace.
2. Medical information must be kept in a separate file. The employer certainly wants to have a system in place for keeping medical related information secure and confidential.
3. Employees are entitled to reasonable accommodations with respect to screening if necessary. Don’t forget about the interactive process, which we discussed here173124122.

A.12.  During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick? (9/8/20; adapted from Pandemic Preparedness Question 6)

Due to the COVID-19 pandemic, at this time employers may ask employees who work on-site, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.

Thoughts/Takeaways: This answer is straightforward. So, I don’t have any thoughts/takeaways for this section.

A.13.  May an employer ask an employee why he or she has been absent from work? (9/8/20; adapted from Pandemic Preparedness Question 15)

Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

Thoughts/Takeaways: This answer is straightforward. So, I don’t have any thoughts/takeaways for this section.

A.14.  When an employee returns from travel during a pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (9/8/20; adapted from Pandemic Preparedness Question 8)

No. Questions about where a person traveled would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.

Thoughts/Takeaways: This answer is straightforward. So, I don’t have any thoughts/takeaways for this section.

 

B. Confidentiality of Medical Information

With limited exceptions, the ADA requires employers to keep confidential any medical information they learn about any applicant or employee. 43Medical information includes not only a diagnosis or treatments, but also the fact that an individual has requested or is receiving a reasonable accommodation. 

B.5.  Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do?  (9/8/20; adapted from 3/27/20 Webinar Question 5)

The ADA requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.

The question is really what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.

The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.

1. The ADA requires an employer keep all medical information about employees confidential even where that information is not about a disability.
2. Even so, managers still have the ability to report to appropriate employer officials so they can take the appropriate action consistent with guidance from CDC and other public health authorities.
3. Guidances from CDC can be a bit all over the place. Strongly consider having your own infectious disease specialist on retainer to help you sort it out. It’s possible that excellent infection control practices and the CDC guidances may not always match up.
4. Employer should make every effort to limit the number of people who get to know the name of the employee.
5. Contact tracing is permissible. Even so, be sure to preserve confidentiality and make clear to your employees the necessity of preserving confidentiality.

 

B.7.  An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why? (9/8/20; adapted from 3/27/20 Webinar Question 7)

Yes. If staff need to know how to contact the employee, and that the employee is working even if not present in the workplace, then disclosure that the employee is teleworking without saying why is permissible. Also, if the employee was on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

Thoughts/Takeaways: Be sure to read the question that begins this section closely. Note that it says, “without saying why?” That is something very important to not forget about or you wind up in an ADA confidentiality problem.

B.8.  Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely? (9/8/20; adapted from 3/27/20 Webinar Question 9)

The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor has to do so. But to the extent that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. This means that paper notepads, laptops, or other devices should not be left where others can access the protected information.

Similarly, documentation must not be stored electronically where others would have access. A manager may even wish to use initials or another code to further ensure confidentiality of the name of an employee.

Thoughts/takeaways: Just because a lot of people are teleworking does not mean that the ADA requirement that medical information be stored separately from regular personnel files no longer applies. It does. The answer to this section is otherwise straightforward.

D. Reasonable Accommodation

Under the ADA, reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, meaning significant difficulty or expense. An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available absent undue hardship. 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.org52174125123. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm53175126124.

D.8.  May an employer invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace? (4/17/20; updated 9/8/20 to address stakeholder questions)

Yes. Employers may inform the workforce that employees with disabilities may request accommodations in advance that they believe they may need when the workplace re-opens. This is discussed in greater detail in Question G.6. If advance requests are received, 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. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

Thoughts/Takeaways:

1. An employer has the obligation to begin the interactive process the moment it becomes aware that a person may need accommodations. Remember, magic words are not required. See this blog entry for example176127125.
2. Don’t forget about getting the interactive process right, which we discussed here177128126.
3. An employee is free to request accommodations at any time.
4. Nothing wrong with the employer informing its workforce that employees with disabilities may request accommodations in advance if they believe they may need them when the workplace reopens.
5. Unreasonable delay in granting accommodations may be actionable, as we discussed here178129127, though Covid-19 may grant an employer some degree of slack.

D.14.  When an employer requires some or all of its employees to telework because of COVID-19 or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations for disability under the ADA or the Rehabilitation Act that it provides to this individual in the workplace?  (9/8/2066; adapted from 3/27/20 Webinar Question 20)67

If such a request is made, the employer and employee should discuss what the employee needs and why, and whether the same or a different accommodation could suffice in the home setting. For example, an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace.

Also, the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. A reasonable accommodation that is feasible and does not pose an undue hardship in the workplace might pose one when considering circumstances, such as the place where it is needed and the reason for telework. For example, the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.

As a practical matter, and in light of the circumstances that led to the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. If possible, providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.

 

Thoughts/takeaways:

1. It doesn’t matter where an employee works. If they have a disability and need an accommodation to do the essential functions of their job, then they are entitled to that accommodation absent in undue hardship. Since the place of work is different, the accommodations may be different as well. Figuring all this out is why you have the interactive process and why getting it right is important. It is entirely possible that the home environment may be already set up for the individual, but you just don’t know. Don’t forget that it is not proper to have the employee pay for their own accommodations.
2. A huge issue is whether attendance on the job is a personal preference or an essential function of the job. The fact that people have been able to work from home productively for some time now may very well change the calculus of whether attendance at the actual worksite is an essential function of the job. Figuring out whether attendance is an essential function of the job at the actual worksite means taking a look at this blog entry179130128.
3. Nothing wrong with providing interim accommodations while the interactive process works itself out.

D.15.  Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?  (9/8/20; adapted from 3/27/20 Webinar Question 21)

No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.

Thoughts/Takeaways:

1. I agree that if there is no disability related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. It is also true that an employee is not entitled to the accommodation they prefer. It’s a matter of what get the employee to the same starting line. However, don’t forget that many people are having long-term effects after coming down with Covid-19.
2. The essential functions of the job may have changed. That is, teleworking may reveal that certain things that were essential functions are no longer essential functions. Preventive law would mean being flexible as jobs have evolved. Going back to the old way when the employee is currently productive may not make a lot of sense.
3. Expect lots of litigation over whether attendance is a personal preference or an essential function of the job.
4. Absolutely true that an employer has no obligation under the ADA to refrain from restoring all of an employee’s essential job functions at the time it chooses to restore the prior work arrangement, and then evaluating any request for continued or new accommodations through the interactive process. But see ¶ ¶ 2-3 of this section.

D.16.  Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

Thoughts/Takeaways:

1. See thoughts/takeaways to D.15 as to why what the EEOC says in D.16 is really good advice.

D.17.  Might the pandemic result in excusable delays during the interactive process? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Yes. The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

Thoughts/takeaways:

1. As mentioned above, Covid-19 may give employers a bit of slack with respect to completing the interactive process. However, keep in mind that unreasonable delay may be actionable as we discussed here180131129.
2. Get the interactive process right, as we mentioned

D.18.  Federal agencies are required to have timelines in their written reasonable accommodation procedures governing how quickly they will process requests and provide reasonable accommodations. What happens if circumstances created by the pandemic prevent an agency from meeting this timeline? (9/8/20; adapted from 3/27/20 Webinar Question 19)

Situations created by the current COVID-19 crisis may constitute an “extenuating circumstance”—something beyond a Federal agency’s control—that may justify exceeding the normal timeline that an agency has adopted in its internal reasonable accommodation procedures.

Thoughts/takeaways: Same as for D.17, immediately above.

F. Furloughs and Layoffs

F.2.  What are additional EEO considerations in planning furloughs or layoffs? (9/8/20; adapted from 3/27/20 Webinar Question 13)

The laws enforced by the EEOC prohibit covered employers from selecting people for furlough or layoff because of that individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity.

Thoughts/Takeaways: F.2 is really straightforward. The only thing I will say is be sure to have knowledgeable counsel for each of the areas involved. Lawyers are specialists and some of us, like myself, are super specialists. Each of these laws can be very comprehensive and very involved.