What You Should Know About COVID-19 and Equal Employment Opportunity Laws
The Equal Employment Opportunity Commission (“EEOC”) is the federal agency that enforces workplace anti-discrimination laws, including:
- The Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries)
- Title VII of the Civil Rights Act (“Title VII”) which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy
- The Age Discrimination in Employment Act (“ADEA”) which prohibits discrimination based on age, 40 or older, and
- The Genetic Information Nondiscrimination Act (“GINA”).
These laws continue to apply during the time of the COVID-19 pandemic but they DO NOT interfere with or prevent employers from following the guidelines and suggestions made by the CDC and/or state/local public health authorities about steps employers should take regarding COVID-19.
Guidance from public health authorities is likely to change as the pandemic evolves. Employees will follow the most current information on maintaining workplace safety.
During a pandemic, ADA-covered employers may ask employees who call in sick whether they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, sore throat, new loss of smell or taste, gastrointestinal problems, such as nausea, diarrhea and vomiting.
When screening employees entering the workplace during this time, employers may ask about any symptoms identified by public health authorities as associated with COVID-19 to determine whether the employees would pose a direct threat to health in the workplace.
Although measuring an employee’s body temperature is a medical examination, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued precautions, employers may measure employees’ body temperature. In addition, an employer may choose to administer COVID-19 testing (to detect the presence of the COVID-19 virus) to employees before they enter the workplace to determine if they have the virus because an individual with the virus will pose a direct threat to the health of others. Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. Employers should require – to the greatest extent possible – that employees observe infection control practices in the workplace to prevent the transmission of COVID-19.
The ADA allows employers to require employees to stay home if they have symptoms of COVID-19. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice
The ADA allows employers to require a doctor’s note certifying fitness for duty because this would not be disability-related or, if the pandemic were severe, would be justified under the ADA standards for disability-related inquiries of employees.
The ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity.” Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Employers should ensure that the tests are accurate and reliable. Employers should still require to the greatest extent possible that employees observe infection control practices in the workplace to prevent transmission of COVID-19.
All medical information about a particular employee is required to be stored separately from the employee’s personnel file to limit access to this confidential information. Information related to COVID-19 may be stored in existing medical files including an employee’s statement that they have the disease or that they suspect they have the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
An employer may require all employees to have a daily temperature check before entering the workplace and may maintain a log of the results. The employer needs to maintain the confidentiality of this information.
An employer may disclose the name of an employee to a public health agency when it learns that an employee has COVID-19.
A temporary staffing agency or contractor that places an employee in an employer’s workplace may notify the employer and disclose the name of the employee because the employer may need to determine if this employee had contact with anyone in the workplace.
An employer may screen job 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 ADA rule applies whether or not the applicant has a disability.
Any medical exams after an employer has made a conditional job offer are permitted such as taking an applicant’s temperature as part of a post-offer, pre-employment medical exam.
According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace therefore an employer may delay the start date of such an applicant.
Based on current CDC guidance, an employer may withdraw a job offer when it needs an applicant to start immediately but the individual has COVID-19–or symptoms of it–because this individual cannot safely enter the workplace.
An employer may NOT postpone the start date or withdraw a job offer because an individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19 because being at higher risk does not justify unilaterally postponing the start date or withdrawing a job offer. The employer may allow remote work or discuss with the individual whether they would like to postpone the start date.
If a job can only be performed at the workplace there may be reasonable accommodations for individuals with disabilities, absent undue hardship, that could offer protection to such individuals who, due to a preexisting disability, are at higher risk from COVID-19. Flexibility by employers and employees is important in determining if some accommodation is possible in these circumstances. Temporary job restructuring or marginal job duties, temporary transfers to a different position, modifying a work schedule or shift assignment may also permit an individual with a disability to safely perform the essential functions of the job while reducing exposure to others in the workplace or while commuting.
An employee with a preexisting mental disorder that has been exacerbated by the COVID-19 pandemic such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may now be entitled to reasonable accommodation, absent undue hardship. Employers may ask questions to:
- determine whether the condition is a disability
- determine how the requested accommodation would assist and enable the employee to keep working
- explore alternative accommodations that may effectively meet their needs and request medical documentation if needed.
An employer need not postpone discussing a request for accommodation from an employee with a disability that will be needed when they return to the workplace. An employer may give higher priority to such requests while employees are working remotely as the employer may be able to acquire all the information needed to make a decision and to make arrangements for the accommodation in advance. Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens. Employers may thereby begin the interactive process.
An employee who was already receiving a reasonable accommodation prior to COVID-19 may be entitled to additional or altered accommodation, absent undue hardship. The employer 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.
If an employee requests an accommodation for a medical condition either at home or in the workplace during the pandemic, an employer may request information to determine if the condition is a disability or medical documentation to determine whether the employee has a disability as defined by the ADA – a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment.
If it is not already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either one requested by the employee or any other. Possible questions include:
- how the disability creates a limitation
- how the requested accommodation will effectively address the issue
- whether another form of accommodation could effectively address the issue and
- how a proposed accommodation will enable the employee to continue performing the “essential functions” of their position – the fundamental job duties
Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” and grant the request for accommodation or provide temporary accommodation. In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change. Employers may wish to adapt the interactive process and devise end dates for the accommodation to suit the changing circumstances based on public health directives. Further, employers may opt to provide requested accommodations on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Employees may request an extension that an employer must consider, particularly if government restrictions are extended or new ones adopted.
An employer does not have to provide a particular reasonable accommodation if it poses an undue hardship – significant difficulty or expense. An accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. It may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items as delivery may be impacted. It may be significantly more difficult to provide employees with temporary assignments or to remove marginal functions or to readily hire temporary workers for specialized positions.
An employer may consider whether current circumstances create “significant difficulty” considering the facts of the particular job and workplace. It may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions or to hire temporary workers. As a result of the COVID-19 pandemic, hardship considerations that may be relevant to determine if a requested accommodation poses a “significant expense” include the sudden loss of some or all of an employer’s income stream, the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted or new restrictions will be added or substituted. The employer must weigh the cost of an accommodation against its current budget while taking into consideration constraints created by this pandemic.
The CDC designations of “critical infrastructure workers” or “essential critical workers” or any other designations of certain employees do not eliminate coverage under the ADA or any other equal employment opportunity law. Employers receiving requests for reasonable accommodation under the ADA from employees falling in these categories of jobs must accept and process the requests as they would for any other employee. Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship.
Employers may require employees to wear protective gear and observe infection control practices. Where an employee needs a related reasonable accommodation under the ADA (such as 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 modifications or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII
If an employee does not request an accommodation, the ADA does not mandate that the employer take action. The ADA does not allow the employer to exclude the employee or take any other adverse action solely because the employee has a disability that the CDC identifies as potentially placing them at a “higher risk for severe illness” if they get COVID-19. Under the ADA, such action is not allowed unless the employee’s disability poses a direct threat to their health that cannot be eliminated or reduced by reasonable accommodation. Direct threat requires an employer to show that the individual has a disability that poses “a significant risk of harm” to their own health. A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on reasonable medical judgment about the employee’s disability–not the disability in general–using the most current medical knowledge and/or best available objective evidence. The ADA requires an employer to consider 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 likelihood that the employee will be exposed to the virus at the worksite, as well as measures the employer may be taking to protect all workers. Even if an employer determines that an employee’s disability poses a direct threat to their 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). The employer is required to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. If there are no 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 employees from the workplace, if, after going through all these steps, the facts do not support the conclusion that the employees pose a significant risk of substantial harm to themselves that cannot be reduced or eliminated by reasonable accommodation.
Source: EEOC Technical Assistance Questions and Answers – updated on May 7, 2020