- May 8, 2020
On May 5, 2020, the Equal Employment Opportunity Commission (EEOC) provided updated guidance relating to handling COVID-19 issues in the workplace with an eye toward balancing the pandemic threat against rights employees have under the Americans with Disabilities Act (ADA). Of particular importance, the EEOC covered issues relating to hiring employees, as well as employees returning to work, as summarized below. Adhering to this guidance will be critical for employers as the economy begins re-opening in the coming months.
As previously communicated, an employer hiring staff may screen applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This pre-hiring screening may include taking an applicant's temperature, as well as actual COVID-19 testing. Employers may delay the start date for any hired applicant who exhibits COVID-19 symptoms, or, alternatively, withdraw a job offer because the individual cannot safely enter the workplace. However, employers may not postpone or withdraw job offers because an applicant is in a higher risk category (like elderly or pregnant).
Employees Returning To Work
As government stay-at-home orders and other restrictions are modified or lifted, employers may screen employees re-entering the workplace for COVID-19 consistent with the ADA, which requires the scanning be job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. Guidance from the CDC or other public health authorities should be utilized in evaluating the direct threat standard. Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.
Employers may also require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols), and must do so under some state orders. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business.
An employer may ask an employee, who is seeking reasonable accommodation because he/she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19, questions or seek medical documentation to help determine if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.
Conversely, an employer may know of an employee that has a condition placing them at higher risk and is concerned that the employee's health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. In such case, the ADA does not mandate that the employer take action, nor does it allow the employer to exclude the employee or take any other adverse action solely because the employee is at higher risk, unless the employee's disability poses a "direct threat" to his health that cannot be eliminated or reduced by reasonable accommodation. A direct threat assessment requires consideration of the employee's disability, the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, the imminence of the potential harm, the severity of the pandemic in a particular area, the employee's own health, the particular job duties, and the likelihood that an individual will be exposed to the virus at the worksite.
Even if an employer determines that an employee's disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship). This can involve an interactive process with the employee. Accommodations may include: additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace; enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others; elimination or substitution of particular "marginal" functions (less critical or incidental job duties as distinguished from the "essential" functions of a particular position); temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing). If there are no such effective accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).
An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation.