In response to COVID-19, the Equal Employment Opportunity Commission (EEOC) has updated it's published guidance for Pandemic Preparedness in the Workplace and the Americans with Disabilities Act that was initially issued in 2009 as a response to the H1N1 outbreak. Also recently released by the EEOC is a Q&A document for employers titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” In order to address questions relevant to this updated guidance, a webinar was presented by Carol Miaskoff, EEOC Associate Legal Counsel, and Jeanne Goldberg, Acting Assistant Legal Counsel for the ADA and GINA. The pre-recorded webinar only focused on questions related to how employers should respond to the COVID-10 pandemic as it relates to federal employment nondiscrimination laws as outlined in the Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act, and the Genetic Information Non-Discrimination Act (GINA) because these are enforceable laws by the EEOC.
In addition to the allowable measures for employees to safely re-enter the workplace (e.g., taking temperatures, wearing necessary protective gear, observing infection control procedures), employers are also permitted to ask whether employees a) have COVID-19, b) have symptoms associated with COVID-19, and c) have been tested for COVID-19. These questions are temporarily considered acceptable, and if an employee refuses to respond to these questions or participate in assessing his/her temperature, an employer may bar the employee from returning to the physical workplace since employers may exclude workers who pose a direct threat to co-workers’ health and safety. However, note that GINA does prohibit similar inquiries about an employee’s family members.
The critical takeaway here is that employers still need to maintain the confidentiality of medical information and limit the information that is shared about individuals’ identity even while making the necessary notifications to public health authorities about an employee’s COVID-19 symptoms or diagnosis as dictated by the CDC guidelines. If an employee’s work situation is altered due to COVID-19, such as teleworking or temporary leave, the reason for this change of status should not be disclosed to other employees without such restricted access. It’s also important to remember that the ADA requires medical information to be stored separately from personnel information.
Employees who may be considered at risk for various reasons may be permitted to work remotely but cannot be treated differently due to an underlying factor that is protected under the law. For example, individuals who are 40 and over are still protected from discrimination in the workplace by the ADEA, and pregnant women are similarly protected under Title VII of the Civil Rights Act. Such employees should be allowed but not required to work remotely or take a leave of absence due to COVID-19 concerns. Employers should also remind employees of their policies against harassment, even if it is related to fear of the COVID-19 virus as claims of national origin discrimination are on the rise.
Similar to the treatment of existing employees, job applicants may be screened for symptoms of COVID-19 after a conditional offer has been made. Employers are permitted to delay the start date or withdraw a job offer from anyone displaying symptoms or testing positive for COVID-19 in accordance with the CDC’s guidance that such individuals should not be in the workplace at this time for the health and safety of others. However, a job offer may not be rescinded, nor a start date delayed if a job applicant is simply considered to be at greater risk (e.g., 65 years or older; pregnant women).
As for the question of whether COVID-19 is considered a disability under the ADA, this is still unclear at this time. With that said, employers are obligated to consider requests for reasonable accommodations for employees with a disability or pre-existing medical condition that puts the individual at a higher risk of COVID-19. Employers are advised to be flexible and creative when reviewing these requests that require prompt attention and should consider providing the requested accommodation on a temporary basis until further discussions are conducted with the employee and/or until medical documentation is received, provided that it does not pose an undue hardship to the business.
For more information about how this impacts your organization, please consult your attorney for legal advice, and refer to the EEOC’s website for updates.