April 11, 2020 – In March 2020, the EEOC released its guidance entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” about which the Kullman Law firm has already reported. Recently, the EEOC provided updated guidance in several employment-related areas. This bulletin is a summary of the EEOC’s updated portions of the pandemic guidance.

Disability-Related Inquiries

• Previously, the EEOC indicated that employers may ask employees about COVID-19 symptoms, such as fever, chills, cough, shortness of breath, or sore throat. In response to the question of whether employers may ask about symptoms other than those previously listed, the EEOC has stated that public health authorities may expand the list of associated symptoms, thereby expanding the types of symptoms about which an employer can ask an employee. The EEOC indicates that employers should rely on the CDC, other public health authorities, and reputable medical sources to determine the types of symptoms an employer can include in its questions. As suitable examples, the EEOC cites loss of smell or taste, and gastrointestinal issues.
• An employer can store COVID-19 information about an employee in existing medical files that relate to other medical issues. The key is that all disability-related information be kept separate from personnel files.
• Employers who are checking the temperature of employees on a daily basis before allowing them to enter the workplace may maintain a log of the results, as long as it is kept confidential.
• An employer may disclose the name of an employee to a public health agency when it learns that he or she has COVID-19.
• A temporary staffing agency or contractor that places an employee in a workplace may notify the employer if it discovers the employee has COVID-19.
• An employer may not refuse to hire an individual who is over 65 or who is pregnant on the grounds that such individuals are at higher risk from COVID-19. An employer, may however, allow such individuals to telework or postpone their start date if they wish.

Reasonable Accommodation

• Employers may still request information during the pandemic to confirm that the employee has a disability when an accommodation is requested.
• Employers should still engage in the interactive process when considering COVID-19 accommodations. Possible questions include: (1) how the disability creates a limitation; (2) how the requested accommodation will address the limitation; (3) whether another form of accommodation could more effectively address the issue; and (4) how the proposed accommodation will allow the employee to perform the “essential functions” of the job.
• If teleworking is not feasible, employers should consider reasonable accommodations that would allow an employee, who, due to a preexisting disability, is at higher risk from COVID-19. This would include reduced contact with others, using barriers to increase distancing, temporary transfers, restructuring marginal job duties, and modifying work schedules.
• An employer should consider accommodations for employees with mental illness or disorders that lessen their ability to deal with the disruptions to daily life caused by COVID-19. Again, employers should ask about the nature of the disability, how the requested accommodation would help the employee, pursue other alternatives, and request medical documentation.
• Employers should not necessarily postpone requests for reasonable accommodation at the workplace where all employees are teleworking. If the employer can acquire all of the necessary information, it may be able to make some arrangements for workplace accommodation in advance.
• Employees already receiving accommodations before the pandemic may require different or additional accommodations since the outbreak. For instance, an employee now teleworking may need a different accommodation than he or she uses at the workplace.
• Temporary accommodations may be appropriate during the pandemic. When government restrictions change, or are fully or partially lifted, the need for accommodation may also change. Employers may put deadlines on short-term accommodations, such as May 30, or when an employee returns to work.
• Employers may ask employees if they will need a reasonable accommodation when they return to work.
• As with any proposed accommodation, an employer does not have to implement it if it would create an “undue hardship” for the employer. This means “significant difficulty or expense.” The EEOC states that an accommodation that might not have posed an undue hardship before the pandemic may do so now.
• Examples of undue hardship depend on particular jobs and circumstances. It may be difficult during the pandemic to acquire certain items, and delivery may be affected, especially for employees who are teleworking.
• Prior to the pandemic, many accommodations did not pose a significant expense when compared to an employer’s overall budget and resources. Now, however, the loss of all or a significant portion of the employer’s revenue as a result of the pandemic might change that analysis. The EEOC explains that this depends on the amount of discretionary funds available at this time. This does not mean that employers can reject any accommodations that cost money; the request must be weighed against the current budget while considering constraints created by the pandemic.

Return-to Work and Other Employment Issues

• Employers should stress to the workforce that fear of COVID-19 should not be directed to certain groups because of protected characteristics, such as national origin and race.
• Employers should remind employees when they re-open the workforce of all the federal EEO laws prohibiting harassment or discrimination against coworkers on the basis of race, national origin, color, sex, religion, age, disability, or genetic information.
• As the EEOC previously explained, employers can legitimately screen employees for COVID-19 when employees are entering the workplace. This is because such infected individuals constitute a direct threat under the ADA, which is based on the best available objective medical evidence–in this case, the guidance from the CDC, and other public health authorities. Employers will be complying with the ADA as long as screening is consistent with that advice at that time. This implies that such advice may change in the future.
• Employers can require employees to wear protective gear and observe infection control practices.
• Employees may need reasonable accommodations with protective gear and clothing, such as non-latex gloves, modified face masks for interpreters who use lip reading, or gowns designed for individuals who use wheelchairs. Additionally, a religious accommodation, such as modified gear due to religious attire, may be appropriate.

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Because legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.