By Kathryn M. Hindman
On April 9, 2020, the EEOC published a collection of Technical Assistance Questions and Answers, and republished all of the current EEOC materials compiled for COVID-19. In its “What you should know about COVID-19 and the ADA, the Rehabilitation Act, and other EEOC laws“ press release guidance, the EEOC reminds us about its prior answers to a few common questions for employers, and includes a few new answers on: (1) disability-related screening and medical exams related to COVID-19 symptoms, (2) the confidentiality of medical information relating to COVID-19 screening results, (3) hiring and onboard screening and job-offer postponement, (4) reasonable accommodations in this pandemic, including considerations for higher risk employees and those with mental health conditions, (5) pandemic-related harassment, and (6) a short reminder about employer responsibilities if seeking a general release of claims with a severance package in a layoff. This alert summarizes new information from the EEOC related to COVID-19, and in particular, new answers related to reasonable accommodation considerations.
1. Disability related inquiries and medical exams: When screening employees entering the workplace, employers may rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms to determine if an employee would pose a direct threat to health in the workplace. This means that in addition to a fever or cough, for example, employers may ask employees about other COVID-19 symptoms such as whether they have experienced a loss of smell or taste, or flu-like symptoms. (Q&A A.2)
2.Disclosing the names of employees: Employers may disclose the name of an employee to a public health agency when it learns that the employee has COVID-19, and temporary staffing agencies and contractors that place employees may similarly disclose a COVID-19 infected employee’s name to an employer (since employers may need to determine if that employee had contact with anyone.) (Q&A B.3)
3. Hiring and onboarding: Employers may not postpone the start date or withdraw a job offer to individuals that are 65 years old or pregnant because they are at a greater risk for COVID-19; being at a greater risk for COVID-19 does not justify unilaterally postponing a start date or withdrawing a job offer. Employers may instead evaluate and consider teleworking, or discuss with these individuals if they would like to postpone the start date. Employers may, however, withdraw a job offer or delay a start date of an applicant who has COVID-19 or symptoms associated with it. (Q&A C.3,5)
4. Reasonable accommodation: The EEOC also provides new guidance on four issues:
- Pre-existing conditions: Potential reasonable accommodations to eliminate possible exposure to COVID-19 for individuals with pre-existing conditions and disabilities may include low-cost solutions achieved with materials already on hand to reduce contact with others, such as designated one-way aisles, and using plexiglass, tables, or other barriers to ensure a minimum distance between customers and coworkers whenever feasible and pursuant to CDC guidance. The EEOC also suggests temporary job restructuring of marginal job duties, temporary transfers to different positions, or modifying work schedules or shift assignments to allow individuals with disabilities to perform safely the essential functions of the job, and/ or reducing exposure to others in the workplace or while commuting. (Q&A D.1)
- COVID-19 related mental conditions: Employees feeling significant COVID-19-related stress, including those with pre-existing mental health conditions such as anxiety disorders, obsessive compulsive disorders, or PTSD, may be entitled to reasonable accommodation (absent undue hardship) since they may have more difficulty handling the disruption to daily life that has accompanied the pandemic. As with any accommodation request, employers may ask questions and seek medical documentation to determine whether the condition is a disability, whether the requested accommodation is medically necessary, discuss how the requested accommodation would assist the employee to enable them to keep working, and explore alternative accommodations that may affectively meet the employee’s needs.(Q&A D.2)
- Postponing the interactive process: If all employees are required to telework during the pandemic, employers do not need to postpone discussing a request from an employee with a disability for an accommodation that will not be needed until the employee returns to the workplace once mandatory working from home ends. Employers may begin discussing such requests now, but give higher priority to those seeking accommodations that are needed while teleworking. If a reasonable accommodation is warranted and granted, the employer may also be able to make arrangements for the accommodation in advance. (Q&A D.3)
- Updated accommodations: Employees who were already receiving accommodations prior to the COVID-19 pandemic, and now request additional or altered accommodations, may now need a different type of accommodation than they had prior to COVID-19. For example, employees who now telework may need additional assistance. Employers may discuss with the employee whether the same or different disability is the basis for the new request, and why additional or altered accommodation is needed. (Q&A D.4)
Finally, the EEOC reminds employers about practical tools available to employers to reduce and address workplace pandemic-related harassment due to national origin, race, or other protected characteristics that may arise as a result of the COVID-19 pandemic. They also remind employers of its prior April 2010 guidance and applicable rules when offering laid off employees with severance packages in exchange for a general release of discrimination claims.
The CDC also recently provided new interim guidance
on safety practices for essential “critical infrastructure workers” who may have been exposed to a person with suspected or confirmed COVID-19.
“To ensure continuity of operations of essential functions, CDC advises that critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community.” Consequently, under certain circumstances and with appropriate precautions, 911 operators, law enforcement and hazardous material responders from both government and private sectors, janitorial and custodial workers, workers - including contracted vendors- in food and agriculture, critical manufacturing, informational technology, transportation, energy and government facilities may remain at work even if they have been exposed to COVID-19.
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