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Latest EEOC Technical Assistance for Covid-19 and the ADA

By Colette L. Kopon and Lynn S. Kopon

On May 5, 2020, the Equal Employment Opportunity Commission again released Technical Assistance Questions and Answers designed to assist employers and employees in understanding their duties, obligations, and protections during this time of the Covid-19 pandemic. The Technical Assistance Questions and Answers were previously updated on April 17, 2020, regarding Covid-19 and the interaction of this public health crisis with the Americans with Disabilities Act (ADA), the Rehabilitation Act and other employment protection laws. The ADA and the Rehabilitation Act continue to apply during this time of pandemic, but they do not prevent employers from adhering to the recommendations of the Center for Disease Control (CDC) or local public health authorities. On March 11, 2020, the Covid-19 crisis was declared a “pandemic.” The U.S. Department of Health and Human Services (HHS), Centers for Disease Control and Prevention (CDC), and the World Health Organization (WHO) are the definitive sources of information about pandemics. The recently updated EEOC technical assistance is focused on implementing the strategies of these health organizations consistent with the requirements of the ADA and other employment protection statutes.  https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

The ADA limits employer’s disability related inquiries and medical examinations for all job applicants and employees, including those who do not have ADA disabilities. The ADA allows employers to conduct medical exams for candidates who have been found to be qualified and have received a conditional job offer, if all entering employees in the same job category are subject to the same inquiries and examinations. During employment, the ADA prohibits employee disability related inquiries or medical examinations unless they are job related and consistent with business necessity. These health inquiries are consistent with business necessity if an employer has a “reasonable belief” that an employee’s ability to perform essential job functions will be impaired by a medical condition or an employee will pose a direct threat due to a medical condition. The “reasonable belief” must be based on objective evidence obtained or reasonably available to the employer, prior to making a disability related inquiry or requiring a medical examination. All information about applicants or employees obtained through disability related inquiries must be kept confidential. (Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, EEOC, updated March 21, 2020). For instance, the EEOC advises that asking an individual if his immune system is compromised is a disability-related inquiry and is prohibited. However, an inquiry is not disability-related if it is not likely to elicit information about a disability, such as asking an applicant whether they have symptoms of a cold or flu.

When an employee calls in sick, the employer may ask if they are experiencing symptoms of the pandemic virus. An employer covered under the ADA may take the body temperature of an employee entering the workplace, even though this technically constitutes a medical examination. The ADA also permits employers to advise employees to stay home if they have symptoms of Covid-19. The ADA allows employers to require a doctor’s note certifying fitness for work duty following an employee’s period of absence due to symptoms of the pandemic.

As some employers seek to hire additional staff during this time of great need, may an employer screen job applicants for symptoms of Covid-19? Yes, the employer may conduct this screening as long as it is done for all entering employees in the same type of job. The employer may also take the temperature of entering employees and delay the start date of a newly hired employee who may have any symptoms of the virus. The employer may even withdraw a job offer if the individual cannot safely enter the workplace due to symptoms of the virus.

The focus of these inquiries is based on “direct threat” under the ADA. A direct threat is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 CFR Sec. 1630.2(r), Pandemic Preparedness in the Workplace and the ADA, EEOC updated March 21, 2020.

Although the employer has some latitude given the pandemic environment caused by Covid-19, employers must still comply with the ADA. As an example, the EEOC states that although the CDC has identified those who are older than 65 or pregnant as being at greater risk for the virus, this alone does not justify postponing the start date or withdrawing a job offer. Technical Assistance Questions and Answers, EEOC, April 17, 2020, C.5.

Many employers are facing the situation of an employee with an underlying condition, who does not want to come to work because the underlying condition renders them at greater risk for serious complications of Covid-19. If the underlying condition is considered a disability, and work can only be performed at the workplace, the ADA may require that the employer and employee should discuss possible reasonable accommodations that could be made for individuals with disabilities, that do not present an undue hardship for the employer. Employers should explore reasonable accommodations that might allow an employee at greater risk of serious illness from the infection to continue to work. Flexibility on the part of employers and employees is important in determining whether an accommodation is possible.

If an employee requests an accommodation, the employer may ask questions or request medical documentation to determine whether the employee has a disability as defined by the ADA. Under the ADA a disability is a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment. The pandemic may also change the environment for what constitutes a reasonable accommodation. An employer must only accommodate a person with a disability if it does not present an undue hardship to the employer. It is possible that accommodations that would not have presented such hardship prior to the pandemic may indeed present a hardship during current conditions. Employers must balance the cost of an accommodation against the current budget, taking into account the economic situation of the employer as a result of the pandemic.

The latest Technical Assistance released on May 5 addresses the situation as government begins to lift restrictions and employees being to return to work. How will employers know what steps they can take, consistent with the ADA, to screen employees for Covid-19 when entering the workplace? The ADA allows employers to make disability-related inquiries and conduct medical exams if these procedures are job-related and consistent with business necessity. This standard is met if it is necessary to exclude employees with a medical condition that would pose a direct threat to health and safety (of themselves or others). A “direct threat” is determined based on the best available medical evidence, so reliance on guidance of the CDC or other public health authorities is recommended. Employers relying on this evidence will be acting consistent with the ADA as long as screening procedures are consistent with guidance from those agencies.

An employer may require returning employees to wear personal protective gear and engage in infection control practices. If an employee with a disability requests a reasonable accommodation regarding these requirements (i.e. non-latex gloves, gowns designed for use with wheelchairs, etc.) the employer should discuss the request and provide accommodation if feasible and does not present an undue hardship on the employer’s business.

What must an employee with a medical condition, which the CDC says may put her at higher risk for severe illness from Covid-19, do to request a reasonable accommodation from her employer? An employee or the employee’s doctor must let the employer know that she needs an accommodation due to the underlying condition. Employees may request the accommodation orally or in writing and the words “reasonable accommodation” are not required. After receiving the request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation that can be provided that does not cause undue hardship to the employer.

If an employee has an underlying condition that puts them at greater risk of severe illness if they were infected with Covid-19, and the employer knows they have that condition, but the employee does not request an accommodation, what are the employer’s responsibilities under the ADA? In this case, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action. However, if the employer is concerned about the employee’s health being jeopardized, 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 putting that employee at higher risk. Such action is not allowed unless the employee’s disability poses a “direct threat” to his or her health that cannot be removed by a reasonable accommodation. The EEOC states that the “direct threat” is a high standard and, as an affirmative defense, requires the employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 CFR Sec. 1630.2(r). This determination must be individually assessed based on a reasonable medical judgment about the employee’s disability using the most current medical knowledge. Even if the employer determines that the employee’s disability poses a direct threat to his own health, the employer still cannot take any adverse action unless there is no reasonable way to provide an accommodation that would reduce the threat, while not imposing an undue hardship on the employer.

The EEOC points out that during this time of pandemic, employers may remind all employees that it is against federal law to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 and over), disability, or genetic information. In particular, employers should remind supervisors and managers of their role in stopping and reporting any harassment or other discrimination.

Should you have any questions regarding these issues, please contact Colette Kopon at [email protected].