EEOC Updates COVID-19 Technical Assistance Publication
The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its technical assistance document, What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws (WYSK). The document adds 18 questions and answers and updated two existing Q&As in order to provide clarifications that reinforce prior EEOC statements about COVID-19 and the EEO laws. Below are highlights from the new and updated Q&As.
COVID-19-Related Questions an Employer May Ask an Employee
An employer may ask all employees physically present in the workplace whether they have been diagnosed with COVID-19, have related symptoms, and whether they have been tested for COVID-19—even if the employee is not displaying any outward manifestations of the virus. Alternatively, if the employer asks one employee, rather than all, the employer must have a reasonable belief based on objective evidence that the singled out individual might have COVID-19. Depending on the size of the organization, it might be simpler for an employer to screen all of its employees entering the building, thus circumventing the need to interpret whether the employer’s belief is “reasonable.”
When questioning employees, the Genetic Information Nondiscrimination Act (GINA) prohibits employers from making medical inquiries regarding employees’ family members. Thus, instead of asking an employee whether he or she has family members who have COVID-19 or its associated symptoms, an employer should ask whether the employee had contact with any person diagnosed with COVID-19 or who may have its symptoms. This way, the employer will not only be complying with applicable laws, but will receive more information than it would if it limited the scope of its questioning to just family members.
If an employee refuses to answer COVID-19 screening questions, the EEOC states that the ADA does not prohibit the employer from refusing the employee entry into the workplace. What the EEOC does not say, but which is generally true, is that the employer can also discipline or discharge the employee for refusing to answer COVID-19 screening questions, and certainly for providing false answers to such questions. In the event an employee refuses to answer screening questions, the EEOC recommends an educational approach at first; that is, an open dialogue between the employer and employee as to the reasons for the employee’s refusal. By taking this approach an employer might be able to allay any fears or reservations contributing to the employee’s refusal. We agree. But, if the educational approach does not work and the employee continues to refuse to answer screening questions, then we suggest the employer consider discipline or discharge.
Additionally, when an employee returns from traveling, an employer at any time may ask that employee where he or she traveled—this is not a disability-related inquiry and, therefore, not prohibited by the ADA. Moreover, an employer may ask whether an employee traveled to one of the locations specified by the CDC or other public health officials as an area in which returning travelers should remain at home for a certain period of time.
Despite the fact that many employees are currently working remotely, the confidentiality requirements imposed by the ADA still apply—employees’ medical information must be kept confidential and separate from regular personnel files. Thus, employers should take care to ensure that this protected medical information is stored so that it cannot be accessed by others in the home or remote working location. While electronically transmitted information is top of mind, a less obvious example of this is ensuring that a notepad containing confidential handwritten information is properly stored and secured in a home office.
Employers who grant telework to employees to mitigate the spread of COVID-19 are not required to automatically grant telework as a reasonable accommodation in lieu of returning to the workplace. If an employee requests a reasonable accommodation, there must be a disability-related limitation that necessitates the accommodation. If no such disability-related limitation exists, then the employer does not have to provide an accommodation. If a disability-related limitation does exist, but an alternative reasonable accommodation exists at the workplace, then it is the employer’s prerogative to choose that alternative to teleworking. Furthermore, while an employer might excuse performance of any essential functions of the job due to teleworking limitations, this does not mean that the employer must either excuse those essential functions permanently, that telework is always a feasible accommodation, or that teleworking does not pose an undue hardship.
Additionally, employees who telework are not necessarily entitled to the same reasonable accommodations that were provided to them on the employer’s premises. This, according to the EEOC, is because the accommodations needed on the employer’s premises might already be provided for in the employee’s home. Furthermore, an accommodation that is reasonable in the workplace might, in the context of teleworking, pose an undue hardship upon the employer. Nevertheless, employers should still strive to be flexible with employees in providing accommodations.
If, prior to the pandemic, an employer refused an employee’s reasonable accommodation request to telework based on a belief the employee would not be able to perform the essential functions of the job, then the EEOC may deem that refusal to be unreasonable in the future if the employee was able to perform all essential job functions while teleworking during a temporary pandemic-related workplace closure. Thus, the temporary teleworking situation provided a “trial run” which proves that performing all essential job functions while teleworking is feasible. What the EEOC ignores, however, is that an employer’s productivity and quality standards may not have been met during the period of temporary telework – even though the essential job functions were technically performed during that timeframe.
Finally, the EEOC recognizes that an employer may invite employees to request, in advance, reasonable accommodations that they anticipate needing upon their return to the workplace. Note that this does not mean an employer can or should ask employees whether they have a disability (such as those identified by the Centers for Disease Control and Prevention) that makes them susceptible to serious illness or death if they become infected with COVID-19. Instead, this is a communication to all employees asking them – if they wish – to let the employer know if they believe they need a reasonable accommodation. If an employee makes such a request, then it is appropriate for the employer to inquire as to whether they have a disability. If the employer determines that a disability exists, then the employer needs to begin the interactive process in order to identify an accommodation, assuming one exists and is both effective and reasonable.
Sarah M. Gorsche