EEOC updates guidance on workplace safety, confidentiality and accommodations
The Equal Employment Opportunity Commission continues to update its guidance on what employers should know about COVID-19 and the Americans with Disabilities Act, the Rehabilitation Act, and other Equal Employment Opportunity laws, with some updates as recent as Friday, April 17, 2020.
Follow current public health guidance
Importantly, the EEOC makes clear that employers are permitted to follow the guidelines and suggestions of the Centers for Disease Control and state and local public health authorities in the workplace regarding COVID-19, noting that guidance from these authorities continues to evolve and employers should continue to follow the most current information on maintaining workplace safety.
When screening employees entering the workplace during this time, employers may ask about any symptom that the CDC, public health authorities, and reputable medical sources have identified as being associated with the coronavirus. Additional symptoms beyond cough, sore throat, fever, chills and shortness of breath may include a loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea and vomiting.
Return to work
Employers may require a doctor’s note certifying fitness for duty when returning affected employees to work. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
As government stay-at-home orders are modified or lifted, employers should take steps consistent with the ADA if screening employees for COVID-19 when entering the workplace. Inquiries and medical exams (including taking temperatures) are permitted if necessary to exclude employees with a condition that would post a direct threat to health and safety. Whether something is a direct threat is determined based on objective medical evidence, and the EEOC has confirmed that guidance from the CDC and other public health authorities constitutes such objective medical evidence. Therefore, employers will be acting consistent with the ADA so long as any screening is consistent with advice from the CDC and public health authorities for that type of workplace at that time.
Confidentiality of medical information
As for confidentiality of medical information, the ADA requires that all medical information about an employee be stored separately from the employee’s personnel file. The EEOC states that employers may store all medical information pertaining to COVID-19 in existing medical files, including an employee’s statement that he/she has the disease or suspects he/she has the disease, or the employer’s notes and documentation from questioning an employee about symptoms. If an employer is conducting daily temperature checks before entering the workplace, the log of those results should be maintained confidentially.
Employers are permitted to disclose the name of an employee to a public health agency when it learns that employee has COVID-19.
If a staffing agency or contractor learns that a worker it has placed with another company has COVID-19, it may disclose that person’s name so the company can determine if that person had contact with others in its workplace.
Documentation and the interactive process
During the pandemic, employers may still request information to determine if the condition is a disability as defined by the ADA and may still engage in the interactive process and request information from an employee about why an accommodation is needed if it is not obvious or already known. An employer may ask questions or request medical documentation to determine whether the employee has a disability (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment) and 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).
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” 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-time 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.
The EEOC has clarified that the hardship posed by the pandemic can factor into the undue hardship analysis. 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. The EEOC explains that 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.
Employers can avoid potential violations of the ADA by following guidance from the CDC and public health authorities as it evolves, in addition to keeping up with guidance from the EEOC. Employers with questions about their obligations should contact McAfee & Taft for assistance. For more information on the EEOC’s most recent guidance, click here: