On April 17, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions arising under the federal employment laws related to the COVID-19 pandemic.\u00a0 \u00a0<\/p>\r\n\r\n\r\n\r\n
The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws<\/a>” expands on a previous publication that focused on the ADA and Rehabilitation Act.\u00a0\u00a0 The update adds Q&A’s to address anticipating return to work situations, making reasonable accommodations, and harassment. The expanded Q&A provided by the EEOC are below:<\/p>\r\n\r\n\r\n\r\n Disability-Related Inquiries and Medical Exams<\/u><\/strong><\/p>\r\n\r\n\r\n\r\n How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?<\/strong> (3\/17\/20) When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19?<\/strong> (4\/9\/20) When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?<\/strong> (3\/17\/20) Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?<\/strong>\u00a0 (3\/17\/20) When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty?<\/strong>\u00a0 (3\/17\/20) Confidentiality of Medical Information<\/u><\/strong><\/p>\r\n\r\n\r\n\r\n May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information?<\/strong> (4\/9\/20) If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results?<\/strong> (4\/9\/20) May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19?<\/strong> (4\/9\/20) May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19?<\/strong> (4\/9\/20) Hiring and Onboarding<\/u><\/strong><\/p>\r\n\r\n\r\n\r\n If an employer is hiring, may it screen applicants for symptoms of COVID-19? <\/strong>(3\/18\/20) May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?<\/strong> (3\/18\/20) May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? <\/strong>(3\/18\/20) May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?<\/strong> (3\/18\/20) May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19?<\/strong> (4\/9\/20) Reasonable Accommodation<\/u><\/strong><\/p>\r\n\r\n\r\n\r\n In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org<\/a>.\u00a0 JAN’s materials specific to COVID-19 are at https:\/\/askjan.org\/topics\/COVID-19.cfm<\/a>.<\/p>\r\n\r\n\r\n\r\n If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities absent undue hardship that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19?<\/strong>\u00a0 (4\/9\/20) Low-cost solutions achieved with materials already on hand or easily obtained may be effective.\u00a0 If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.<\/p>\r\n\r\n\r\n\r\n Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.<\/p>\r\n\r\n\r\n\r\n If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)?<\/strong> (4\/9\/20) As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.<\/p>\r\n\r\n\r\n\r\n In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends?<\/strong> (4\/9\/20) What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation?<\/strong> (4\/9\/20) During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may an employer still request information to determine if the condition is a disability?<\/strong> (4\/17\/20) During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed?<\/strong> (4\/17\/20) If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation?<\/strong> (4\/17\/20) Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts her at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.<\/p>\r\n\r\n\r\n\r\n Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.<\/p>\r\n\r\n\r\n\r\n May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace?<\/strong> (4\/17\/20) Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship?<\/strong> (4\/17\/20) What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” during the COVID-19 pandemic?<\/strong> (4\/17\/20) What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant expense” during the COVID-19 pandemic?<\/strong> (4\/17\/20) Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics<\/u><\/strong><\/p>\r\n\r\n\r\n\r\n What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic?<\/strong> (4\/9\/20) Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace?<\/strong> (4\/17\/20) Furloughs and Layoffs<\/u><\/strong><\/p>\r\n\r\n\r\n\r\n Under the EEOC’s laws, what waiver responsibilities apply when an employer is conducting layoffs?<\/strong> (4\/9\/20)\u00a0 Return to Work<\/u><\/strong><\/p>\r\n\r\n\r\n\r\n As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace?<\/strong> (4\/17\/20) Direct threat is to be determined based on the best available objective medical evidence.\u00a0 The guidance from CDC or other public health authorities is such evidence.\u00a0 Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.<\/p>\r\n\r\n\r\n\r\n For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace.\u00a0 Similarly, the CDC recently posted information on return by certain types of critical workers.\u00a0<\/p>\r\n\r\n\r\n\r\n Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.<\/p>\r\n\r\n\r\n\r\n
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.<\/p>\r\n\r\n\r\n\r\n
As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms.\u00a0 Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.<\/p>\r\n\r\n\r\n\r\n
Generally, 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 attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.<\/p>\r\n\r\n\r\n\r\n
Yes. 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.<\/p>\r\n\r\n\r\n\r\n
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.<\/p>\r\n\r\n\r\n\r\n
The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information.\u00a0 An employer may store all medical information related to COVID-19 in existing medical files.\u00a0 This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.<\/p>\r\n\r\n\r\n\r\n
Yes.\u00a0The employer needs to maintain the confidentiality of this information.<\/p>\r\n\r\n\r\n\r\n
Yes.<\/p>\r\n\r\n\r\n\r\n
Yes.\u00a0The staffing agency or contractor 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.<\/p>\r\n\r\n\r\n\r\n
Yes. 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.\u00a0 This ADA rule applies whether or not the applicant has a disability.\u00a0<\/p>\r\n\r\n\r\n\r\n
Yes.\u00a0 Any medical exams are permitted after an employer has made a conditional offer of employment.\u00a0 However, employers should be aware that some people with COVID-19 do not have a fever.<\/p>\r\n\r\n\r\n\r\n
Yes.\u00a0 According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.<\/p>\r\n\r\n\r\n\r\n
Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.<\/p>\r\n\r\n\r\n\r\n
No.\u00a0 The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer.\u00a0 However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.<\/p>\r\n\r\n\r\n\r\n
There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure.\u00a0 Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.<\/p>\r\n\r\n\r\n\r\n
Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.<\/p>\r\n\r\n\r\n\r\n
Not necessarily.\u00a0 An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now.\u00a0 The employer may be able to acquire all the information it needs to make a decision.\u00a0 If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.<\/p>\r\n\r\n\r\n\r\n
An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship.\u00a0 For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what he uses in the workplace.\u00a0 The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.<\/p>\r\n\r\n\r\n\r\n
Yes, if it is not obvious or already known, an employer may ask questions or request 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).<\/p>\r\n\r\n\r\n\r\n
Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee may include: (1) how the disability creates a\u00a0 limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).<\/p>\r\n\r\n\r\n\r\n
Yes.\u00a0Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” (discussed in D.5 and D.6., above) and grant the request.\u00a0 In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change.\u00a0 This may result in more requests for short-term accommodations. Employers may wish to adapt the interactive process – and devise end dates for the accommodation – to suit changing circumstances based on public health directives.<\/p>\r\n\r\n\r\n\r\n
Yes.\u00a0 Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens.\u00a0 Employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.<\/p>\r\n\r\n\r\n\r\n
Yes.\u00a0An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.<\/p>\r\n\r\n\r\n\r\n
An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace.\u00a0 For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking.\u00a0 Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.\u00a0 If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.<\/p>\r\n\r\n\r\n\r\n
Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget\/resources of the entire entity and not just its components).\u00a0 But, the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.\u00a0 Also relevant is 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).\u00a0 These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.\u00a0 For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.<\/p>\r\n\r\n\r\n\r\n
Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.<\/p>\r\n\r\n\r\n\r\n
Yes.\u00a0 An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information.\u00a0 It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination.\u00a0 An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.<\/p>\r\n\r\n\r\n\r\n
Special rules apply when an employer is offering employees severance packages in exchange for a general release of all discrimination claims against the employer.\u00a0 More information is available in EEOC’s technical assistance document on severance agreements.<\/p>\r\n\r\n\r\n\r\n
The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity.\u00a0 Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.<\/p>\r\n\r\n\r\n\r\n