Wyatt Employment Law Report

EEOC Questions and Answers for Reopening Employers

By Julie Laemmle Watts

The Equal Employment Opportunity Commission (“EEOC”) continues to update its guidance for employers in its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” questions and answers on a host of topics, including topics that are important for employers who are beginning the process of reopening. Some of these topics include: Disability-Related Inquiries and Medical Exams; Confidentiality of Medical Examination; Reasonable Accommodation; and Return to Work.

Below are an assortment of the questions pertinent to reopening employers along with abbreviated answers from the EEOC.

Disability-Related Inquiries and Medical Exams

How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?

    • During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of the pandemic virus. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about symptoms identified by public health authorities associated with COVID-19

    • Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease.

May an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?

    • Yes. However, employers should be aware that some people with COVID-19 do not have a fever.

Does the ADA allow employers to require employees to stay home if they have symptoms of COVID-19?

    • Yes.

When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty?

    • Yes. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic to provide fitness-for-duty documentation.

May an employer administer a COVID-19 test before permitting employees to enter the workplace?

    • Yes, but the employer should ensure that the tests are accurate and reliable.

Confidentiality of Medical Information

May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information?

    • An employer may store all medical information related to COVID-19 in existing medical files, which should be stored separately from an employee’s personnel file. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employers notes or other documentation from questioning an employee about symptoms.

If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results?

    • Yes. The employer needs to maintain the confidentiality of this information.

May an employer disclose the name of an employee to a public health agency when it learns the employee has COVID-19?

    • Yes.

May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19?

    • Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee because the employer may need to determine if this employee had contact with anyone in the workplace.

Reasonable Accommodation

If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities absent undue hardship that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19?

    • Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer. Low-cost solutions achieved with materials already on hand or easily obtained may be effective. Flexibility by employers and employees is important in determining if some accommodation is possible under the circumstances.

If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)?

    • As with any accommodation request, employers may ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.

In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatary telework ends?

    • Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now.

What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation?

    • An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship.

During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may an employer still request information to determine if the condition is a disability?

    • Yes, 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” as defined by the ADA.

During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed?

    • Yes, if it is not obvious or already known, an employer 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.

If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation?

    • Yes.

May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace?

    • Yes.

Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship?

    • Yes. In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” during the COVID-19 pandemic?

    • It may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.

What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant expense” during the COVID-19 pandemic?

    • 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 no new restrictions will be added or substituted).

Do the ADA and the Rehabilitation Act apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC?

    • Yes.

Return to Work

As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace?

    • The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests?

    • An employer may require employees to wear protective gear and observe infection control practices. However, where an employee with a disability needs a related reasonable accommodation under the ADA, or a religious accommodation under Title VII, the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship.

What does an employee need to do in order to request reasonable accommodation from his employer because he has one of the medical conditions that the CDC says may put him at higher risk for severe illness from COVID-19?

    • An employee – or a third party, such as an employee’s doctor – must let the employer know that he needs a change for a reason related to a medical condition (here, the underlying condition).

The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation?

    • If the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action. If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation. The direct threat requirement is a high standard. Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer cannot exclude the employee from the workplace or take any other adverse action unless there is no way to provide a reasonable accommodation (absent undue hardship).

What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self?

    • Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of less critical or incidental job duties. In addition, accommodations may include temporary modification of work schedules or moving the location of where one performs work.

Employers are encouraged to monitor the EEOC website to find the latest updates relating to the COVID-19 pandemic.

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