EEOC’s September Updates on COVID and the ADA
In a September 8, 2020 Press Release, the EEOC announced further updates to its technical assistance publication entitled “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws”, including many new Q&As and updates to previous guidance. The EEOC enforces numerous anti-discrimination laws including the ADA. Title I of the ADA applies to private employers with 15 or more employees. It also applies to state and local government employers, employment agencies, and labor unions. State and local laws may mirror those like the ADA, and may apply to employers with less than 15 employees. The EEOC reminds employers that the ADA and other anti-discrimination laws continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions from the CDC or other state/local public health authorities. “Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.”
This article is the third in a series of updates we have provided on the EEOC’s continuing efforts to address disability issues in the time of COVID-19. See our April and June Newsletters for the first two installments. New concerns have arisen since the pandemic began, and the September 8th update provides more comprehensive guidance on these issues - tele-working, privacy, reasonable accommodation and return-to-work issues. The EEOC’s September 8th update continues in the same Q&A format. Selected and summarized below are just some of the key issues addressed. Readers are strongly encouraged to closely review the EEOC publication in full, found at the following weblink: www.eeoc.gov/coronavirus. The March 27, 2020 EEOC Webinar referenced in the responses is also available at the covonavirus weblink.
Q. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace? (4/23/20; updated 9/8/20 to address stakeholder questions about updates to CDC guidance)
A. The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with COVID-19 will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. . . Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.
Consistent with the ADA standard, employers should ensure that the tests are considered accurate and reliable. . . . Because the CDC and FDA may revise their recommendations based on new information, it may be helpful to check these agency websites for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Note that a positive test result reveals that an individual most likely has a current infection and may be able to transmit the virus to others. A negative test result means that the individual did not have detectable COVID-19 at the time of testing. A negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require–to the greatest extent possible–that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.
Q. May an employer invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace? (4/17/20; updated 9/8/20 to address stakeholder questions)
A. Yes. Employers may inform the workforce that employees with disabilities may request accommodations in advance that they believe they may need when the workplace re-opens. . . . If employees make advance requests, employers may begin the "interactive process" – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time. See related Q&A on Accommodation and workplace flexibility issues.
Q. When an employer requires some or all of its employees to telework because of COVID-19 . . . , is the employer required to provide a teleworking employee with the same reasonable accommodations for disability under the ADA . . . that it provides to this individual in the workplace? (9/8/20; adapted from 3/27/20 Webinar Question 20)
If such a request is made, the employer and employee should discuss what the employee
needs and why, and whether the same or a different accommodation could suffice in the home setting. For example, an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace.
Also, the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. A/*/* reasonable accommodation that is feasible and does not pose an undue hardship in the workplace might pose one when considering circumstances, such as the place where it is needed and the reason for telework. For example, the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment.
As a practical matter, and in light of the circumstances that led to the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. If possible, providing interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information.
For more information on the EEOC COVID-19 Guidance, or other employment issues, please contact Diana Schroeher at the Law Firm.