The EEOC has Updated its COVID-19 Guidance to Address Additional ADA Concerns

            On September 8, 2020, the EEOC updated its Question and Answer page (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws) in which 18 new questions regarding the application of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and other EEO laws are addressed to aid employers during the pandemic.  The topics addressed include:  (1) disability related inquiries and exams; (2) confidentiality; and (3) reasonable accommodations.  While I strongly encourage all employers to read the guidance, continue to read if you would like to save some scrolling time as the EEOC’s website updates its previous guidance which I am sure you have all read.

  1. Disability-related Inquiries and Exams.

Updating its April 23, 2020 guidance on the question of whether an employer may administer a COVID-19 test when evaluating an employee’s initial or continued presence in the workplace, we are reminded that the ADA requires that any mandatory medical tests of an employee be “job-related and consistent with business necessity.”  The EEOC has clarified this standard by indicating that during the COVID-19 pandemic, employers may take screening steps to determine whether an employee entering the workplace has COVID-19 symptoms which would pose a direct threat to the health of others.  As such, the EEOC advises that an employer may choose to administer COVID-19 tests to employees before initially permitting them to enter the work place and/or periodically to assess if the employee’s presence poses a direct threat of illness to others.

Moreover, an employer may ask all employees who will be entering the workplace if they have COVID-19 or symptoms associated therewith and may further inquire if the employee has been tested for COVID-19.  If any employee states they have or presents with symptoms of COVID-19 (i.e., fever, chills, cough, shortness of breath), an employer may exclude the employee because the presence of that employee could pose a direct threat to the health or safety of others.  This does not apply to employees who are working remotely from their home; it only applies to those employees who will come in contact with other employees or clients/customers/etc.   If an employee refuses to permit his/her temperature to be taken or refuses to answer questions about COVID-19 symptoms, the employer may bar the employee from entering the workplace.  The EEOC advises in such a situation to engage the employee in an interactive dialogue to learn why the employee is hesitant.  If the employee asks for a reasonable accommodation concerning the testing, the usual accommodation request process should be followed. 

The EEOC further reminds us that we should treat employees equally.  Specifically, if an employer plans to ask employees COVID-19 screening questions or administer COVID-19 tests, the employer must do so in a non-discriminatory fashion.  It should be noted, however, that if an employer plans to ask only a particular employee to answer such questions or submit to screening/testing, the ADA requires that the employer have a reasonable belief based on objective evidence that the person might be infected.

Furthermore, the Genetic Information Nondiscrimination Act (“GINA”) prohibits employers from asking its employees medical questions about said employee’s family members.  GINA does not, however, prohibit an employer from asking employees whether they have had contact with someone diagnosed with COVID-19 or who may have symptoms associated therewith. 

Concerning other illness related inquiries, the EEOC advises that if an employee gets sick while at work, the employer may ask questions concerning the employee’s symptoms to determine if the symptoms are evidence of COVID-19. Similarly, if an employee is absent from work, the employer may inquire as to the reasoning of the absence including any illness related questions. 

2. Confidentiality.

The newest guidance from the EEOC addresses questions concerning the confidentiality obligations of employers under the ADA while addressing COVID-19 issues in the workplace.  Of important note, the guidance provides that while the ADA requires that an employer keep all medical information about its employees confidential (including whether an employee has symptoms of, or a diagnoses of, COVID-19) managers are not prevented from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC.  The EEOC does warn, however, that the employer should take as many precautions as possible to limit the disclosure of the name of the employee(s) who have been diagnosed or exhibit symptoms of COVID-19.

Moreover, 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 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 x floor” has tested positive for COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. In a situation where employees may be able to figure out who the infected employee is, the employer must refrain from confirming or revealing the employee’s identity. 

3. Reasonable Accommodations.

The EEOC advises employers that for any reasonable accommodation requests, the interactive process should occur  They note, however, that the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. For example, while an accommodation request might be reasonable and feasible in the workplace might pose an undue hardship for teleworkers. 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.

            The intent of this post is to provide a general guide to the EEOC’s latest COVID-19 related guidance concerning the ADA and related EEO laws.  If you or your institution has any specific questions, please do not hesitate to call or email.

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