The U.S. Equal Employment Opportunity Commission (“EEOC”) has posted an updated and expanded technical assistance publication addressing employment questions related to the COVID-19 pandemic.
The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (“WYSK”) provides approaches employers may adopt as they plan for employees to return to the workplace. The EEOC has provided periodic updates to this guidance as the COVID-19 crisis has evolved and new legal questions have arisen.
The updated WYSK adds 18 questions and answers that have been adapted from two other EEOC technical assistance resources: “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” and a publicly available EEOC webinar from March 27, 2020. In addition, the EEOC updated two existing WYSK Q&As in order to provide helpful clarifications that reinforce prior EEOC statements about COVID-19 and the EEO laws.
Testing and Accommodation
First, in the updated “A.6.,” the EEOC more fully explains its position permitting employers to administer COVID-19 tests before allowing employees to enter the workplace. As stated in A.6, “[A]n employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate.”
Second, in the updated “D.8.,” the EEOC clarifies its position on employers’ authority to invite employees not currently in the workplace to request disability accommodation in advance of their expected return if they choose to do so. If advance requests are received, employers may begin the “interactive process” – meaning employers can discuss with the employee whether the employee’s impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.
Inquiries About Symptoms, Absences and Travel
The updated WYSK addresses a number of questions regarding an employer’s right to ask an employee certain questions about COVID symptoms, absences and travel:
A.12. During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick? (9/8/20; adapted from Pandemic Preparedness Question 6)
Due to the COVID-19 pandemic, at this time employers may ask employees who work on-site, whether regularly or occasionally, and report feeling ill or who call in sick, questions about their symptoms as part of workplace screening for COVID-19.
A.13. May an employer ask an employee why he or she has been absent from work? (9/8/20; adapted from Pandemic Preparedness Question 15)
Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
A.14. When an employee returns from travel during a pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (9/8/20; adapted from Pandemic Preparedness Question 8)
No. Questions about where a person traveled would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.
Telework and ADA Reasonable Accommodation
When employers began teleworking in response to the COVID pandemic, there was concern that they were opening a Pandora’s box and would have to allow employees with disabilities to telework as a reasonable accommodation under the Americans with Disabilities Act after the pandemic ended. The WYSK clarifies that employers that allow telework during the COVID-19 pandemic are not automatically required to give disabled workers that same accommodation once the virus becomes less of a threat:
D.15. Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation? (9/8/20; adapted from 3/27/20 Webinar Question 21)
No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.
To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.
The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.
Conclusion
Employers should find comfort in the EEOC’s explanation. Nonetheless, as an additional safeguard, employers should still notify employees who are teleworking in response to COVID that they are being permitted to telework on a temporary basis in response to the pandemic and with the understanding that they may not be able perform all of the job’s essential functions while teleworking.
The EEOC’s updated WYSK reassures employers that they can lawfully monitor and test employee’s before returning them to the workplace. In addition, employers that have permitted telework in response to the extraordinary impact COVID-19 has had on their operations, are not automatically required to give disabled workers that same accommodation once the virus becomes less of a threat. This is an important development that should encourage employers to continue to be flexible with their employees as they deal with the challenges of operating in the midst of a pandemic.
As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
