EEOC Updates Guidance During Ongoing Pandemic

The COVID-19 virus has continued to have a widespread impact. In light of that unfortunate reality, employers must carefully balance maintaining a workforce and minimizing the presence of the virus in their workplaces. Part of this process involves evaluating an employer’s obligations under the Americans with Disabilities Act (ADA) regarding reasonable accommodations for employees with disabilities and evaluating employer rights under the ADA and other laws administered by the Equal Employment Opportunity Commission (EEOC) regarding employee medical evaluation and COVID-19 testing. The EEOC has developed a set of questions and answers to guide employers.

The following is a discussion of the highlights of the guidance materials; however, employers are advised to review the full set of FAQs for more information.

Employer Authority Regarding Employee Inquiries

Generally speaking, the EEOC takes the position through its guidance that employers may screen employees for symptoms of COVID-19 and may institute temperature checks for employees entering the employers’ premises. Likewise, an employer has the authority to refuse entry onto its premises to any employee who refuses to provide screening information, including temperature checks, provided that those measures are done uniformly, as opposed to singling out employees, such as, for example, based on a presumption that the employee has a particular vulnerability to COVID-19.

There are some important distinctions within this general framework. First, the guidance notes that while universally applicable screening is ADA compliant, identifying a specific employee for purposes of medical inquiry must be based on a “reasonable belief based on objective evidence that the individual might have the disease”. The reasonable belief must be based on observation or other objective basis that an employee is experiencing symptoms of COVID-19 as are identified by the CDC.

Second, according to the EEOC, it is not acceptable to ask employees if they have family members who have COVID-19 or symptoms of it. From the EEOC’s perspective, such inquiries would constitute a violation of the Genetic Information Nondiscrimination Act (GINA). The inquiry therefore has to be stated more generically, such as eliciting information regarding close contacts with symptomatic or diagnosed individuals, without regard to whether there also exists a family relationship. Notably, both the CDC and the state health department consistently distinguish in significance information regarding contacts within one’s residence as compared to elsewhere. Therefore, it is presumably appropriate to inquire as to whether any close contacts are with individuals with whom the employee resides, but not to inquire whether the person is a family member or not.

Reminders Regarding Employee Medical Information

The EEOC guidance reminds employers that the ADA contains confidentiality requirements related to employee medical information. Specifically, any health-related information collected about employees must be kept separate from employee personnel files. Employers may collect and maintain information, including temperature logs, self-reported symptoms, testing and results, and documentation of pre-existing conditions provided by the employee. In addition, the EEOC reminds employers that health-related information should only be made available to those employer officials with a “need to know” the information, but employers may disclose general information to employees at large, for example stating that an employee in a particular work area or on a particular shift has tested positive.

The EEOC’s guidance expressly permits disclosing of information on employee COVID-19 test results to the local health department. Employers have followed this protocol only to learn that many local health departments are not actively following up on reports or conducting investigations and contact tracing to assist in identifying further action. Wisconsin law grants the state and local health department authority to conduct investigations concerning communicable disease and contacts, as well as to order quarantine measures. Employers do not have the same authority and, even if employees are excluded from the workplace, the employers’ control does not go beyond the workplace. Accordingly, regardless of the local health departments’ inactivity, employers should still report instances of known cases and request guidance from their health department, while preparing to implement protocols that protect their environment in anticipation of health department inaction.

Analysis of Reasonable Accommodation Requests

The EEOC’s guidance discusses an employer’s obligation to evaluate whether employees with disabilities require reasonable accommodations due to the pandemic through the “interactive process”. Generally, the guidance illustrates an expectation to engage in a process of evaluating employees on a case-by-case basis and through medical documentation in a manner consistent with the requirements that exist even absent a pandemic. As far as types of accommodations specific to this pandemic period, the EEOC contemplates the use of protective equipment, teleworking, and job reassignment as primary considerations. Likewise, employers are reminded that even while teleworking, an employee may be entitled to accommodations. For example, if an employee requires assistive technology this may still be required. The analysis may take into account the environment of working from home as opposed to the employers’ locations, however.

Employers are permitted to consider the circumstances of the pandemic when evaluating whether a potential accommodation may pose an undue hardship. For example, it is typically reasonable and not an undue hardship to eliminate or reassign marginal job duties as an accommodation; however, the EEOC acknowledges that this reassignment or removal may not be feasible given a lack of staffing, etc. during the current pandemic.

The EEOC does make it clear that employers have no obligation to provide reasonable accommodations to an employee based on that employee’s family member with a disability, even if the family member’s condition does pose greater health risks due to COVID-19.

With respect to telework as a reasonable accommodation, the EEOC suggests that the same considerations for telework as an accommodation are present, but that the employer’s and the employee’s experiences during required telework periods (i.e., during the Safer at Home Order) are relevant to whether the accommodation is reasonable. For example, employers may have denied a telework request pre-pandemic based on the determination that the position requires presence at the employer’s facility, but may have learned through forced experience that the work can be effectively performed remotely. The guidance does note that telework arrangements may not necessarily become permanent as an accommodation simply because the employee teleworked during a closure. Operational analysis following return to the employer’s worksite is still appropriate; however, employers should expect this argument in support of requests for teleworking accommodations.

Finally, the EEOC expressly acknowledges that the pandemic has created circumstances where delays, or the use of interim accommodation measures are likely to be excused and flexibility afforded.

Conclusion

As if the near total disruption in all aspects of every operation was not sufficient for employers to manage, the barrage of employee protective measures provides another minefield to navigate. Employers have been focused on the Families First Coronavirus Response Act (FFCRA) and the FMLA as those provisions impact workforce circumstances. Meanwhile, the EEOC is actively publishing guidance relative to the workplace accommodations, medical examinations and disability-related inquiry rules, as well as reminders regarding workplace harassment and other protections that are still obligations during this pandemic period.

As employers continue to navigate these complex times, the attorneys at Renning, Lewis & Lacy, S.C. are here to assist.