As businesses and individuals navigate the challenges of returning to work in the COVID-19 era, the federal agency responsible for enforcing anti-discrimination laws, the Equal Employment Opportunity Commission (EEOC), has issued valuable guidance addressing employers’ and employees’ rights and responsibilities under the Americans with Disabilities Act (the ADA).

The guidance, which the EEOC routinely updates, emphasizes that while the ADA still applies in the context of the COVID-19 pandemic, it does not prevent employers from following guidelines set out by the Center for Disease Control (CDC) or other public health authorities to keep employees and workplaces safe.

 

EMPLOYERS MAY SCREEN EMPLOYEES FOR COVID-19

The guidance advises that the ADA allows employers to screen employees for COVID-19 because an employee infected with the virus poses a direct threat to the health of others.  There is no guarantee that screening employees does not violate workplace privacy or other laws.  The ADA does not prevent an employer from taking the following steps:

  • Asking employees whether they have experienced common symptoms of COVID-19, as determined by the CDC and other public health authorities.  These symptoms include fever, cough, shortness of breath, chills, nausea, vomiting, and loss of smell or taste;
  • Taking employees’ temperatures regularly and storing that data (i.e., a daily log), provided the information is kept confidential; and
  • Testing for COVID-19 before allowing employees to enter the workplace, though the guidance cautions that employers should review guidance from the FDA or CDC to ensure the tests administered are accurate and reliable.

In the event an employee presents with COVID-19 symptoms or tests positive for the virus, their employer should require they stay out of the workplace, as the CDC recommends. The guidance provides that the employer may require such an employee to obtain certification of their fitness for duty before returning to the workplace.  However, in recognition of the current strain on doctors and other health care professionals, employers should be flexible regarding the type of certification required.  The guidance suggests accepting a form, stamp or e-mail from a local clinic to certify that an employee does not have COVID-19.

Employers may also screen job applicants (after making a conditional job offer) in the same manner they screen employees for COVID-19.  If an applicant presents with COVID-19 or its symptoms, an employer may delay the applicant’s start date or even withdraw the job offer if the employer needs the applicant to start immediately.

 

“HIGH-RISK” EMPLOYEES AND REASONABLE ACCOMMODATIONS

An employee may request a reasonable accommodation from their employer if they have an existing qualifying disability under the ADA that puts them at greater risk from COVID-19.  The guidance also appears to expand the ADA’s protections to include employees with a CDC-recognized medical condition that puts them at higher risk for infection, severe illness and poorer outcomes from COVID-19, even if an employee does not have a “disability” as defined by the ADA.  The CDC’s recognized “high risk” medical conditions include moderate to severe asthma, chronic lung conditions, serious heart conditions, diabetes, severe obesity (defined as BMI of 40 or above) and various conditions that render an individual immunocompromised.

Notably, in addition to identifying medical conditions that place individuals at a higher risk for COVID-19, the CDC has also identified those who are 65 or older and pregnant women as facing higher risk from COVID-19.  Previous EEOC guidance indicates that the ADA does not require employers to provide employees with COVID-19-related reasonable accommodations based solely on an employee’s advanced age or pregnancy status.  In addition, the EEOC has previously advised that barring employees from the workplace during the pandemic based solely on advanced age or pregnancy status would violate the Age Discrimination in Employment Act and Title VII of the Civil Rights Act, respectively.

After receiving an employee’s request for an ADA accommodation, the employer should engage in the interactive process by asking questions or requesting medical documentation to help decide if the individual has a disability (if not already known) or high-risk medical condition, and if the employer can provide a reasonable accommodation.

Reasonable accommodations may include simple physical solutions, like installing plexiglass or other barriers, increasing the distance between a high-risk employee’s workspace and that of other employees, or providing additional personal protective equipment. However, the guidance makes clear that absent one of these simple solutions, employers must consider telework options, leave or a job reassignment as potential reasonable accommodations.

As always, the ADA permits an employer to reject proposed accommodations that would create an “undue hardship” for the employer (i.e., significant expense or difficulty).  Recognizing that many employers are going through tough financial times as a result of the pandemic, the guidance acknowledges that an accommodation that would have been (or already was) deemed reasonable pre-pandemic may now constitute an undue hardship.

Regardless of whether an employee requests an accommodation for a high-risk medical condition, an employer may not bar the employee from the workplace solely because of that condition, unless the condition poses a “direct threat” to the employee’s health that cannot be eliminated or reduced by a reasonable accommodation, absent undue hardship.  The guidance makes clear that the direct threat standard is a high bar, requiring “significant risk of substantial harm” to the employee’s own health.  To determine whether an employee’s condition presents a direct threat, the employer must perform an individualized assessment of the employee’s condition, taking into account:

  • particular job duties;
  • duration of the risk;
  • nature and severity of potential harm;
  • likelihood of workplace exposure;
  • potential ways to mitigate the exposure risk; and
  • other environmental factors.

Even if an employer determines that an employee’s existing disability or high-risk medical condition poses a direct threat to his own health, the employer still cannot bar the employee from the workplace, or take any other adverse action, unless there is no way to provide a reasonable accommodation without undue hardship.

The guidance recognizes that guidelines and advice from public health authorities are likely to change as the COVID-19 pandemic evolves and more is learned about the virus. Therefore, employers should continue to follow the most current information on maintaining workplace safety.


 

CONTACT

If you have questions about complying with EEOC guidance or any other employment-related matter that might affect your business or employment, please contact a member of our Employment Law Practice.

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