EEOC Guidance for Employers Navigating ADA Risks in the Workplace Amid the COVID-19 Pandemic

04.15.2020

The Coronavirus ("COVID-19") pandemic has caused many complex workplace challenges for employers, especially in complying with anti-discrimination laws such as the Americans with Disabilities Act (“ADA”). Over the past few weeks, the United States Equal Employment Opportunity Commission (“EEOC”) released technical guidance to employers on complying with the ADA amid the COVID-19 pandemic. On Thursday, April 9, 2020, the EEOC provided updated guidance.

This Alert summarizes and highlights some of the EEOC’s recent guidance to employers, but it does not provide a complete summary of that guidance.

Inquiries to Employees about COVID-19 Symptoms

The EEOC indicated that employers may screen employees entering the workplace by asking such employees whether they have experienced COVID-19 related symptoms. In determining about which COVID-19 related symptoms employers may inquire, the EEOC recommended that employers rely on the Centers for Disease Control and Prevention (“CDC”), other public health authorities, and “reputable medical sources” for guidance on what questions they may ask when conducting screenings of employees entering the workplace to see if such employees pose a direct threat to others.

Temperature Testing

Taking an employee’s body temperature is a medical examination under the ADA. However, while there are limits under the ADA for conducting medical examinations, the EEOC indicated that employers may conduct temperature checks for employees entering work given that the CDC and other public health authorities have acknowledged the communal spread of COVID-19. Employers can maintain a log of the results. Such information must be kept confidential.

Confidentiality of Medical Information

COVID-19 related information that an employer has obtained from an employee qualifies as confidential medical information. This includes the results of taking an employee’s temperature or the employee’s self-identification as having the disease. The EEOC stated that under the ADA, employers are required to store medical information about a particular employee separate from the employee’s personnel file, and that employers may store all COVID-19 related information in an employee’s existing medical files. However, employers are allowed to disclose the names of employees confirmed to have COVID-19 to public health officials.

Doctor’s Clearance to Return to Work

Employers may require a doctor’s note before allowing an employee to return to work under the ADA. However, the EEOC noted that medical professionals may be too busy to provide such documentation, and it suggests that employers rely on documentation such as a form, stamp, or an email from local clinics to certify that an employee does not have COVID-19. In addition, local public health orders may impose stricter requirements on an employer's ability to request a doctor's note before allowing an employee to return to work.

Reasonable Accommodations

For employees with jobs that can only be performed on site and who have a preexisting disability that puts them at higher risk from COVID-19, the EEOC stated that employers can still reasonably accommodate such employees temporarily without undue hardship in several ways. For example, an employer may designate one-way aisles; use plexiglass, tables, or other barriers to ensure minimum distances between people; temporarily transferring people to different positions; or modify work schedules or shift assignments.

For employees who are required to telework during this time, the EEOC encouraged employers not to postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he/she returns to the workplace when mandatory telework ends. Moreover, the EEOC also added that employees who were already receiving reasonable accommodations before the COVID-19 pandemic may be entitled to additional or altered accommodations.

The EEOC also stated that employees with preexisting mental health conditions (e.g., anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder) that have been exacerbated by the COVID-19 pandemic remain entitled to reasonable accommodations. In such instances, employers must take the same steps they normally would for other accommodation requests.

COVID-19-Related Workplace Harassment

In addressing and reducing workplace harassment due to COVID-19, the EEOC advised employers to explicitly advise their employees not to misdirect their fears to other employees because of national origin, race, or other protected characteristics.

While the EEOC has provided some guidance on complying with anti-discrimination laws, this guidance does not and cannot address all ADA compliance issues that employers face arising out of COVID-19. Employers should tread carefully in complying with the ADA and should seek the assistance of their employment counsel for issues not addressed in the EEOC guidance.