As we previously reported, since the outset of the COVID-19 pandemic, the U.S. Equal Employment Opportunity Commission (EEOC) has issued instructions, statements, and guidance to help employers navigate COVID-19’s workplace impact. On September 8, 2020, the EEOC updated its “Technical Assistance Questions and Answers,” which include updates relating to COVID-19 and the Americans with Disabilities Act (ADA) and other equal employment opportunity laws previously published in the agency’s “Technical Assistance Guidance on Disability Accommodation.” Among the highlights are an expansion on allowable employee COVID-19 testing, the addition of guidance on COVID-19–related medical inquiries, specific guidance on handling confidentiality requirements and concerns in the age of COVID-19, and new guidance relating to the ADA’s reasonable accommodation process, with a specific emphasis on telework as an accommodation. While some of the latest guidance is not necessarily novel and was consolidated from other sources, as employers continue to ramp up the return of employees to worksites and/or evaluate the continuation of COVID-19 work adjustments such as telework, a one-stop compilation of guidelines is always a valuable and appreciated resource.
Disability-Related Inquiries and Medical Exams
In previous guidance, the EEOC made clear that employers could require employees to submit to COVID-19 testing to evaluate whether it was safe for them to enter the workplace. The EEOC’s guidance now also allows for employers to “periodically” test those employees on work premises to determine if their “continued presence” poses a direct threat to others. The guidance also reiterates the EEOC’s recognition of and deference to U.S. Centers for Disease Control and Prevention (CDC) guidelines for COVID-19 testing, expressly stating that job-related testing that is consistent with CDC guidelines will meet the ADA’s “business necessity” standards.
More significant additions include guidelines relating to COVID-19 medical inquiries. The EEOC’s position now expressly permits an employer to ask employees entering the workplace if they have COVID-19 or symptoms associated with it, or if they have been tested for COVID-19. The EEOC also permits an employer to ask “one employee—as opposed to asking all employees” COVID-19–related questions, so as long as the employer has “a reasonable belief based on objective evidence” that the employee might have the virus. The guidelines also allow employers, as part of permissible workplace screening procedures during the pandemic, to seek specific information about symptoms from employees who report feeling ill, as well as ask about employee travel.
Employers may not, however, ask an employee entering the workplace if he or she has family members “who have COVID-19 or symptoms associated with COVID-19.” The EEOC’s guidelines state that the Genetic Information Nondiscrimination Act (GINA) prohibits such inquiries. The EEOC’s inquiry prohibition seems to extend only to family members, as the guidelines acknowledge that “GINA … does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.”
Finally, the guidelines permit employers to bar from entry or continued presence on the worksite any employee who refuses to submit to temperature testing or answer COVID-19–related questions. The EEOC notes that “employers may wish to ask the reasons for the employee’s refusal,” and reminds employers about obligations with regard to privacy, but the EEOC makes no mention of exceptions, such as religious beliefs, that might allow an employee to bypass the screening.
Confidentiality of Medical Information
Adding to its previous general guidance regarding the privacy of applicant or employee medical information obtained through COVID-19 screenings, the EEOC provides answers to specific confidentiality questions in its latest guidance. For example, the guidelines suggest that employers take precautions to protect the identity of an employee who has COVID-19 or symptoms, “limiting access to this confidential information,” though the guidelines acknowledge that certain disclosures must be made (e.g., to public health officials and potentially exposed coworkers). Similarly, the guidelines allow an employee to report to a supervisor the COVID-19 symptoms of a coworker. The EEOC, however, permits an employer to withhold from staff COVID-19 information about an employee who is teleworking because of self-quarantine requirements, or who was on leave at the time of diagnosis.
Scenarios related to telework feature prominently in the updates to the EEOC’s discussion about reasonable accommodations under the ADA. For example, the guidelines explain that employers that have allowed employees to telework while workplaces have been closed may reinstate essential job functions that were temporarily excused and assess requests to continue telework as a reasonable accommodation on a case-by-case basis. The guidelines also recognize that telework arrangements temporarily instituted during the COVID-19 pandemic may provide information that will be relevant to a determination regarding whether an employee with a disability can perform the essential functions of the position while working remotely. In other words, the mere fact that an employer may have denied an employee’s accommodation request to telework before the pandemic will not excuse the employer from considering a renewed request by the employee with a disability to continue teleworking following the resumption of operations at the workplace. The guidelines also recognize that accommodations that may have been allowed in the workplace will not necessarily be reasonable when an employee is teleworking, and that the outcome of an interactive process undertaken during a telework period may diverge from an outcome that was reached when the employee was working in the workplace.
In addition, the guidelines expressly recognize that the COVID-19 pandemic may delay the timeline for engaging in the interactive process for addressing accommodation requests under the ADA. Reiterating earlier guidance, the EEOC states that “[e]mployers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible,” and underscores that employers may invite employees to commence discussions about accommodations that may be needed before they return to their workplaces. However, per the guidelines, employers remain obligated to consider requests from employees who elect not to make requests in advance of a return date.
Furloughs and Layoffs
Employers continue to make adjustments to the sizes of their workforces as the impacts of the COVID-19 pandemic continue. The EEOC guidelines remind employers that the selection of individuals for temporary or permanent employment changes must not be made because of any protected characteristic, including the race, color, religion, national origin, sex, age, disability, or protected genetic information of the individual, or in retaliation for engaging in protected activity.
Flexible Arrangements and the ADEA
In its June 2020 update, the EEOC underscored that the Age Discrimination in Employment Act (ADEA) does not prohibit covered employers from offering greater flexibility to employees 65 years of age and older who are at a higher risk of severe illness if they contract COVID-19. The ADEA prohibits less favorable treatment of older workers, and the guidelines have been updated to make this explicit.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.