EEOC Updates COVID-19/ADA Guidance As We Move Toward Reopening the Economy

Back on March 18th as we were entering the COVID-19 health crisis, we addressed EEOC guidance on the impact of the ADA on COVID-19 preventative measures.  Fast forward to today, as our collective focus shifts to talk of “re-opening the economy,” the EEOC has updated its guidance.  Uncertainty abounds as to whether it will be business as usual or a new normal.  Undoubtedly though, employers will need to be mindful to avoid ADA pitfalls as restrictions are lifted, furloughed workers return and/or as new hires are brought onboard. 

The EEOC’s updated guidance addresses the following areas (new and revised information in bold):

Disability-Related Inquiries and Medical Exams

  • Our prior guidance regarding questioning employees about COVID-19 symptoms, measuring temperature, requiring employees with symptoms to stay at home and asking them to provide doctor’s notes is unchanged.
  • Employers can still ask employees to disclose whether they are experiencing COVID-19 symptoms.  The list of symptoms has been expanded, and may continue to expand, as experts learn more (symptoms now include loss of smell/taste and gastrointestinal problems).
  • As the burden on health care providers is lightened, it will become easier to require employees to provide doctors notes and fitness-for-duty documentation.  Of course, as we recommended before, employers should follow CDC and WHO guidelines on this issue.

Confidentiality of Medical Information

  • Consistent with the ADA and our prior guidance, any medical information, including temperature checks, must be kept confidential and stored in employee’s medical files (kept separately from personnel files).
  • Information may be disclosed to local public health agencies.
  • Staffing agencies may disclose information of any affected individual to employers.

Hiring and Onboarding guidance

  • When hiring, employers may continue to screen or conduct medical examinations following a conditional offer, bearing in mind that candidates may still be asymptomatic.
  • Start dates may be delayed.
  • Offers may be withdrawn if an individual is unable to start right away as a result of a COVID-19 diagnosis or symptoms.

Reasonable Accommodation

  • Individuals might require accommodation because their disability makes them particularly vulnerable to COVID-19. This could give rise to new forms of accommodations. Examples given include one way aisles and plexiglass or other physical barriers to provide protection and/or ensure distancing.  
  • Pandemic might exacerbate some disabilities such as anxiety, OCD and PTSD.
  • The duty to provide reasonable accommodation can extend to any work environment.
  • Temporary changes prompted by the pandemic (including work from home) can give rise to (or eliminate) the need for reasonable accommodation or alter the effectiveness of an accommodation provided previously.
  • Employees can still be asked to substantiate disability and need for accommodation.
  • As always, engage with employees to assess accommodation needs and undue hardship on a case by case basis, given the particular circumstances. 

Pandemic-Related Harassment

  • Harassment based on an individual’s race or national origin, or other legally protected characteristic, must not be tolerated. Enough said.

Furloughs and Layoffs

  • Reminder that special rules apply when severance or other benefits are offered to a group of employees in exchange for a release – a reference to the OWBPA requirements for group terminations. The law here has not changed.

Return to Work

  • As stay-at-home orders or other restrictions are lifted, employers will still be able to take action pursuant to EEOC, CDC and/or state health officials’ guidance.
  • Disability-related inquiries and medical exams will be appropriate if job-related and consistent with business necessity.
  • As with any ADA analysis, employers will be able to exclude employees with medical conditions that pose a direct threat to the health or safety of others.
  • Employers will need to review CDC guidelines with respect to returning employees, including those deemed “critical workers.” 
  • Employers will need to work with returning employees about protective equipment requirements and infection control practices.
  • Employers will need to engage in the interactive process with any employees seeking ADA reasonable accommodations regarding protective equipment, i.e. non-latex gloves, modified facemasks, or religious accommodations under Title VII (modified equipment due to religious garb).

Welcome to the Labor and Employment Law Update where attorneys from Amundsen Davis blog about management side labor and employment issues. 

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