EEOC Updates Guidance on COVID-19 and the ADA
On May 5, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance on complying with the Americans with Disabilities Act (“ADA”) when returning employees to work and the questions that can be asked about potential medical conditions. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
First of all, to respond to a question many clients have asked since the onset of the COVID-19 pandemic, fitness-for-duty certifications may be required of employees returning from medical-related leaves. However, as a practical matter, new approaches may be necessary to adopt, such as reliance on local clinics to provide a form, a stamp or an email to certify that the employee does not have the virus and is otherwise able to return to work.
Next, when an employer decides to begin bringing employees back to work from a furlough or layoff, keep in mind that the ADA applies to this employment action. Under the ADA, employers are permitted to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity at the recall stage. Under this standard, screening returning employees for COVID-19 is permissible and is met when it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.
Guidance from the CDC and public health authorities constitutes sufficient evidence of a direct threat. So, as long as screening measures are consistent with such guidance, they are permissible under the ADA. Such screening measures may include taking temperatures, asking questions about symptoms, or requiring self-reporting of all employees entering the workplace. In conducting such screenings and inquiries, all employers must be mindful of privacy concerns with regard to employees’ symptoms and/or diagnosis of COVID-19, including temperature logs and other medical information obtained from employees. Keep this information fully confidential and filed separately from any non-medical personnel files.
In implementing recalls, there will undoubtedly be some employees who do not want to return to work and/or may request an accommodation. This may occur more frequently with older employees, pregnant employees, employees with comorbidities, etc. To remain in compliance with the ADA, upon such an employee requesting an accommodation, it is best to engage in the interactive process to determine whether the employee has a disability covered by the ADA that would require a reasonable accommodation, and whether that accommodation can be provided without undue hardship or significant difficulty.
An employer may also continue to ask questions and/or request documentation to determine if the condition is a disability under the ADA as long as it is not obvious or already known. You should continue to use the Interactive Process Questionnaire in these circumstances. But, at the same time, be sure to remain flexible and if necessary, consider providing a temporary reasonable accommodation if requested while waiting for receipt of the medical information.
In assessing the reasonableness of an accommodation, keep in mind that the ADA does not require an employer to provide a reasonable accommodation if it poses an “undue hardship,” which means a “significant difficulty or expense.” Accommodations that would not have posed an undue hardship or significant difficulty/expense pre-pandemic may pose one now. For example, it may be significantly more difficult to conduct a needs assessment or to acquire certain items currently, and delivery may be impacted, particularly for employees who are working from home. It also may be significantly more difficult to provide employees with temporary assignments, remove marginal functions, or readily hire temporary employees for specialized positions.
Finally, the EEOC provided examples of accommodations that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self in this COVID-19 environment: additional or enhanced protective gowns, masks, gloves, or other gear; 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; elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position); temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).
If you have any questions or need information concerning return-to-work issues, please contact either Lynn Schonberg or Nick Nykulak.