The EEOC Issues New Guidance on COVID-19: Questions and Answers

The Equal Employment Opportunity Commission ("EEOC") continues to issue guidance to help employers manage their workforce during the COVID-19 pandemic. (Updated 4-29-2020)

The Equal Employment Opportunity Commission ("EEOC") continues to issue guidance to help employers manage their workforce during the COVID-19 pandemic, including new questions and answers posted to their website. The Q&A cover the topics of disability-related inquiries and medical exams, confidentiality of medical information, hiring and onboarding, reasonable accommodation, pandemic-related harassment due to national origin, race, or other protected characteristics, disability-related inquiries and medical exams, and return to work. The new guidance is highlighted below as well as links to some helpful resources.

Confidential Medical Information

The EEOC clarified that an employer can store information it obtains related to COVID-19, including the results of taking an employee's temperature or the employee's self-identification as having COVID-19, in existing medical files that are separate from the employee's personnel file. If an employer requires all employees to have a daily temperature check before entering the workplace, the employer may maintain a log of the results, but must maintain the confidentiality of this information.

Hiring

Employers must continue to be mindful of all relevant non-discrimination laws. An employer may not postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, even though these individuals are at higher risk from COVID-19 based on CDC guidance. Employers may offer telework to these individuals or discuss with these individuals if they would like to postpone the start date.

Reasonable Accommodation

In considering reasonable accommodation requests under the Americans with Disabilities Act ("ADA"), employers may find useful information on different types of accommodation at the Job Accommodation Network (JAN) website, www.askjan.org. JAN also has materials specific to COVID-19, including different ADA scenarios and solutions, at https://askjan.org/topics/COVID-19.cfm. If individuals have disabilities that place them at greater risk from COVID-19 and they request accommodations to eliminate possible exposure, some accommodations may meet their needs on a temporary basis without causing undue hardship on the employer.

The EEOC is encouraging employers and employees to be flexible in determining if some accommodation is possible under the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform essential job functions safely while reducing exposure to others in the workplace. Employers may wish to adapt the interactive process - and devise end dates for the accommodation - to suit changing circumstances based on public health directives.

Return to Work

As state and local governments modify stay-at-home orders, employers will need to determine what steps to take to safely return workers to the workplace. The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Employers will be acting in accordance with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time. This may include taking temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Employers and employees should follow guidance from the Centers for Disease Control and Prevention ("CDC") as well as state and local public health authorities on how to protect workers, vendors, clients, and the public.

For information regarding federal wage and hour law, the Family and Medical Leave Act ("FMLA"), the Families First Coronavirus Response Act ("FFCRA"), and the Occupational Health and Safety Administration ("OSHA"), employers should refer to the Department of Labor's website at https://www.dol.gov/agencies/whd/pandemic

EEOC Webinar Q&A

On March 27, 2020, the EEOC posted a link on its website for a COVID-19 "Ask the EEOC" recorded webinar. During this webinar, three EEOC attorneys answered 22 questions related to the ADA and other statutes enforced by the EEOC including the Genetic Information Nondiscrimination Act ("GINA"), the Age Discrimination in Employment Act ("ADEA") and the Pregnancy Discrimination Act ("PDA"). The EEOC selected 22 questions to answer from over 500 questions submitted to the agency related to COVID-19. Topics covered include medical questionnaires and taking an employee's temperature in the workplace, disclosure of an employee's exposure to COVID-19, reasonable accommodations, the interactive process, and confidentiality concerns. Below we summarize the questions and answers from the webinar.

The EEOC emphasized that ADA continues to apply during this time, but the ADA does not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take related to the workplace.

ADA

Q. The EEOC has explained in the updated 2020 EEOC Pandemic publication that at the present time the COVID-19 pandemic permits an employer to take the temperature of employees who are coming into the workplace. Is there anything else an employer could do at the current time to determine if employees physically coming into the workplace have COVOD-19 or symptoms associated with the disease?

A. Employers may ask employees physically entering the workplace if they have COVID-10, if they have symptoms of COVID-19, including cough, sore throat, fever and chills, or are waiting for the results of a COVID-19 test. These inquiries are permissible since the presence of a worker with COVID-19 in the workplace would pose a direct threat to the health and safety of co-workers.

Q. What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature, refuses to answer questions about whether he has COVID-19, refuses to say whether he has symptoms associated with COVID-19, or he has been tested for COVID-19?

A. Under the circumstances, the ADA allows an employer to bar an employee from physical presence in the workplace if the worker has COVID-19, symptoms associated with COVID-19, or has been tested for COVID-19. The employer may ask the employee's reason for refusal and take steps to ensure the safety of everyone in the workplace. Be aware that sometimes employees are wary of sharing medical information because they fear broad disclosure of their medical information. The employer can assure the employee that their medical information will not be disclosed to others in the workplace.

Q. May a manager ask only one employee, as opposing to asking all employees, questions designed to determine if she has COVID-19, or require that her temperature be taken?

A. If an employer wishes to ask only one employee to answer such questions, the ADA requires the employer to have a reasonable belief based on objective evidence that the employee has the disease. If the employer notices that the employee has a persistent hacking cough, the employer can ask if the employee has been to a doctor or if the employee has COVID-19. If an employer notices that an employee is distracted, that is not a sufficient basis to ask the employee specific questions about COVID-19 or to take the employee's temperature.

Q. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?

A. From a public health perspective, only asking an employee about contact with family members provides only limited information about the extent of the employee's potential exposure. A better question is whether the employee has had contact with anyone with COVID-19 or symptoms associated with the disease. It is better to ask a general question. Keep in mind that GINA prohibits employers from asking employees questions about family medical matters.

Q. Is COVID-19 a disability under the ADA?

A. This is a new virus and medical experts are learning more about it. It is unclear at this time whether COVID-19 is or could be a disability under the ADA. At this time, because COVID-19 poses a direct threat in the workplace, an employer may bar a person with COVID-19 from the workplace.

Q. What are an employer's ADA obligations when an employee says that he has a disability that puts him at greater risk of severe illness if he contracts COVID-19, and therefore asks for reasonable accommodation?

A. The CDC has identified several medical conditions including chronic lung disease and heart conditions that put individuals at higher risk, therefore, this clearly is a request for a reasonable accommodation. The employer may verify that the employee has a disability and inquire whether the disability puts the employee at higher risk. There also can be a situation where the current pandemic would exacerbate an existing disability. The employer may consider whether a reasonable accommodation would pose an undue hardship on the employer. It may be hard to get a doctor's note at this time, but there may be other ways to identify a disability, like a health insurance record or a prescription.

Q. What are an employer's ADA obligations to provide reasonable accommodation if an employee says that he lives in the same household as someone who due to a disability is at greater risk of severe illness if he contracts COVID-19?

A. The employee only has a right to reasonable accommodation for his own disability. The employee here does not have a disability; the member of his household does. The employer, however, should consider if it is treating the employee differently than other employees with a similar need before it responds to the request.

Q. What practical considerations should employers and employees keep in mind about the interactive process in the current COVID-19 situation?

A. In the current situation, some requests may need an employer's prompt attention such as employees who have disabilities that put them at higher risk. The employer may want to provide an accommodation on a temporary basis for one or two weeks while the employer is discussing the request more fully with the employee or waiting to receive necessary medical documentation to make an informed decision. During this time, the employer and employee should be as flexible and creative as possible. There may be accommodations that are not ideal but will meet the employee's need on a short-term basis.

Confidentiality Concerns

Q. A manager learns and confirms that an employee has COVID-19, or symptoms associated with the disease. The manager knows she must report it, but she is worried about violating ADA confidentiality. What should she do?

A. Even though the information is medical information, the manager is not prohibited from reporting the information to designated officials at the employer. Employers should make every effort to limit the number of people who need to know the name of the affected employee and limit the number of people who have access to this information. A designated official can interview the employee about whom they have been in contact with in the workplace. All employer officials should be instructed regarding the confidentiality of the information. Determine in advance who should have access to this information. Even in a small workplace, the employer cannot confirm the identity if the employee.

Q. An employee who must report to the workplace knows that a coworker who reports to the same workplace has symptoms associated with COVID-19. Does ADA confidentiality prevent the first employee from disclosing the coworker's symptoms to a supervisor?

A. No. ADA confidentiality does not prevent the employee from communicating to the supervisor about a co-worker's symptoms. After learning about this situation, the manager should report it to appropriate workplace authorities.

Q. An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this employee is teleworking without saying why?

A. Yes. Staff can be told that the worker is teleworking without saying why. If an employee is on leave and not teleworking, an employer cannot disclose the reason for the leave, just the fact that the employee is on leave.

Q. Employers may be concerned that telling employees that "someone at this location" or "someone on the 4^th floor" has COVID-19 may not provide sufficient information to allow people to know if they should take further steps to protect themselves or others. Therefore, can employers tell the workforce the name of the employee with COVID-19?

A. No. The name of the employee should not be disclosed. The ADA does not prohibit the broad disclosure of a medical condition of an employee, but the name of the employee should not be revealed. Also, the CDC recommends that an employer should maintain the confidentiality of an employee with COVID-19.

Q. Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely?

A. If a manager or supervisor receives medical information while teleworking, they should follow the employer's existing confidentiality protocols. Confidential medical information must be stored separately from regular personnel files. If not feasible, the supervisor must protect this information to the extent practicable given the circumstances until the supervisor returns to the workplace. Therefore, notepads, laptops and other devices should not be stored where others have access. Consider using employee initials on documents.

Q. Does the ADA permit employers to notify public health officials if they learn an employee has COVID-19?

A. Yes. The ADA permits, but does require this notification to public health authorities. The ADA does not preempt state, county, or local laws designed to protect public health.

Older Workers (ADEA)

Q. May an employer exclude from the workplace an employee who is 65 or older and who does not have COVID-19 or symptoms associated with the disease, solely because the CDC has identified this age group as being at higher risk of severe illness if they contract COVID-19?

A. No. The employer cannot exclude older employees from the workplace as a preventative measure. The ADEA prohibits age discrimination against workers age 40 and older.

Q. Do the EEO laws require an employer to grant a request to telework from an employee who is 60 or older because the CDC says older people are more likely to experience severe symptoms if they get COVID-19?

A. No. The ADEA itself does not have an accommodation provision. Employers should not treat older workers differently. However, if the employer is allowing comparable workers to telework than it also should allow older workers to telecommute.

Pregnant Workers (PDA)

Q. The CDC list of people who are at higher risk for severe illness if they contract COVID-19 includes a recommendation to monitor women who are pregnant. Based on this CDC recommendation, may an employer decide to lay off or place on furlough a woman who is pregnant but does not have COVID-19, or even symptoms associated with the disease?

A. No. Pregnant employees are protected under the PDA. Decisions about work should not be based on pregnancy.

Q. Conversely, do the EEO laws require an employer to grant a request to telework from an employee who is pregnant because the CDC says there is a higher risk if she contracts COVID-19?

A. Title VII, as amended by the PDA, states that women affected by pregnancy should be treated the same for all employment-related actions. Pregnancy itself is not an ADA disability, but sometimes pregnancy-related medical conditions can rise to the level of an ADA disability and trigger ADA accommodation rights.

National Origin (Title VII)

Q. May an employer single out employees based on national origin and exclude them from the workplace due to concerns about possible transmission of COVID-19? May an employer tolerate a hostile work environment based on an employee's national origin or religion because others link it to transmission of COVID-19?

A. No. Title VII prohibits all employment discrimination based on national origin, even during a pandemic.

Telework

Q. When an employer requires some or all of its employees to telework because of COVID-19, or government officials require employers to shut down their facilities and have workers telework if possible, is the employer required to provide a teleworking employee with the same accommodations that it provides to this individual in the workplace?

A. If such a request is made, the employer and employee should discuss what the employee needs and why. For example, the employee might have what they need already in their home. Undue hardship could come into play. There may be constraints on the employer to do a proper evaluation. During this time, the employer and employee should be as flexible and creative as possible. There may be accommodations that are not ideal, but will meet the employee's need on a short term basis.

Q. Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVD-19. After such public health measures are no longer necessary, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who wishes to continue this arrangement?

A. No. Anytime an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that requires teleworking. If there is a disability-related limitation, but the employer can provide accommodation in the workplace, the employer can choose to have the worker in the workplace. The ADA never requires the employer to eliminate an essential job function as an accommodation. The employer might be temporarily accommodating some jobs and eliminating some essential job functions as part of the COVID-19 pandemic. The employer may restore essential job duties at the time the health crisis passes.

Q. Assume that, prior to the emergence of COVID-19, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential job functions remotely. In the past, the employee continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her reasonable accommodation request for telework. Can the employer again refuse the accommodation?

A. The temporary telework could be relevant to reconsidering the request. The temporary telework could be considered a trial period. The employer and employee should engage in a flexible and cooperative interactive process.

Helpful EEOC Resources

The EEOC has several resources available on their website.

All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.
What You Should Know About the ADA, the Rehabilitation Act, and COVID-19
Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. This technical assistance document provides information about the ADA. The document was originally issued in 2009 to address ADA issues during the spread of the H1N1 virus, but it was reissued on March 19, 2020 with updated regarding the COVID-19 pandemic.
EEOC Chair Janet Dhillon issued a message on National Origin and Race Discrimination During the COVID-19 Outbreak addressing mistreatment and harassment of Asian Americans and other people of Asian descent.

Additional Resources

Find FAQs, checklists, webcasts, and the resources to help you protect and manage your workforce here: ADP Employer Preparedness Toolkit — Coronavirus Disease (COVID-19)

Launch this SPECIAL EDITION WEBCAST SERIES anytime: Protecting Your Workforce and Understanding Policies as Your Organization Responds to COVID-19

The information provided by ADP is for general informational purposes only and is not legal, accounting or tax advice. The information and services ADP provides should not be deemed a substitute for the advice of such professionals who can better address your specific concern and situation. Any information provided here is by nature subject to revision and may not be the most current information available on the subject matter discussed.