Esther Lander, Anastasia Marie Kerdock and James Crowley of Akin Gump discuss the Equal Employment Opportunity Commission’s new guidance regarding how employers can appropriately respond to COVID-19 as they relate to hiring new employees, protecting current ones and bringing them back to work.
The Equal Employment Opportunity Commission (EEOC) has released multiple forms of guidance addressing questions about the interrelation between federal disability discrimination laws and employer responses to the COVID-19 pandemic. The guidance includes a webinar released on March 27, 2020, a periodically updated webpage titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (last updated on April 23, 2020), and updated pandemic preparedness guidance, which was originally issued in response to the H1N1 pandemic in 2009 and was most recently updated on March 21, 2020. While federal antidiscrimination laws continue to apply during the COVID-19 pandemic, the EEOC stresses that those laws do not interfere with an employer’s ability to follow guidelines issued by the Centers for Disease Control and Prevention (CDC) or state and local health authorities. The EEOC’s updated guidance includes key considerations related to hiring new employees, protecting current employees, and bringing employees back to work.
Hiring New Employees
As sectors of the economy begin to reopen and companies resume operations, ensuring that new hires do not spread COVID-19 to the workforce is critical. The EEOC has clarified that employers are permitted to screen job applicants for COVID-19 after making a conditional offer of employment without violating the Americans with Disabilities Act (ADA), so long as the employer does so for all entering employees in the same type of job (employers remain prohibited from making disability-related inquiries or conducting medical examinations before a conditional offer of employment is made). If an applicant has COVID-19 or associated symptoms, the employer may delay his or her start date or withdraw the conditional offer (if the employer needs someone to start immediately), given existing CDC guidance that individuals with COVID-19 cannot safely enter the workforce.
Protecting Current Employees
The EEOC has clarified that employers are permitted to take a number of precautions to protect employees still physically reporting to work from contracting COVID-19, again based on current guidance from the CDC regarding how to limit community spread.
Requiring Temperature Checks or COVID-19 Tests Before Entering the Workspace
Employers may take employees’ temperatures or, where available, administer COVID-19 testing before allowing entry into the workplace without violating the ADA. Generally, measuring an employee’s body temperature or testing for a virus is a medical examination prohibited by the ADA unless done for a permissible purpose, such as determining whether an employee’s medical condition makes them unable to safely perform their essential job functions with or without an accommodation. The EEOC’s updated pandemic guidance expressly states that, based upon the CDC and state/local health authorities’ acknowledgment of COVID-19 community spread, and the attendant precautions that have been recommended as of April 2020, employers may measure employees’ body temperatures or administer a COVID-19 test. However, the EEOC has cautioned that some people with COVID-19 do not have fevers and some COVID-19 tests are not reliable. Employers who decide to conduct temperature checks or administer COVID-19 tests should do so uniformly for all employees physically reporting to work unless the employer has a reasonable belief, based on objective evidence, that would justify singling out a specific employee for a temperature check or a COVID-19 test. Also, while employers may maintain a log of daily temperature checks or test results, as with all medical information, the fact that an employee had a fever or tested positive for COVID-19 would be subject to ADA confidentiality requirements.
Asking Employees about COVID-19 Exposure, Symptoms or Diagnoses
Employers may ask all employees physically entering the workplace if they have COVID-19, if they have been tested for COVID-19, if they have symptoms associated with COVID-19 or if they have been in contact with anyone who has been diagnosed with or is experiencing COVID-19 symptoms.1 Employees who have a confirmed case of COVID-19, those who have a fever or other symptoms of COVID-19 or those who refuse to answer the employer’s questions may be excluded from the workplace. Note, however, that as with temperature checks, these measures should be applied equally to all employees physically reporting to work. An employer who singles out a particular employee must have a reasonable belief based on objective evidence that the person may have the virus (for example, if the employer has noticed that a particular employee has a persistent cough). Employers generally should not ask similar questions of employees who are teleworking and not physically interacting with coworkers, given that the same workplace safety concerns are not present.
Notifying Employees of Potential Exposure
According to the EEOC’s guidance, employers may disclose limited information about an employee who tests positive for COVID-19 or has associated symptoms. A supervisor who learns of an employee’s actual or potential COVID-19 diagnosis may report the information to the appropriate employer officials, so that the employer can take appropriate action with respect to the rest of the workforce and notify public health authorities. However, disclosure of the individual employee’s identity should be limited to those who need to know, such as to a designated person who can interview the employee about who he or she has come into contact with in the workplace. Employers may then notify the affected employees of their potential exposure, without revealing the identity of the diagnosed employee.
While not endorsed in the EEOC’s guidance, employers may have some flexibility if the employee discloses his or her diagnosis voluntarily. The ADA requires that employers maintain as strictly confidential medical information received from an employee in response to an employer’s medical inquiry (such as an employer asking questions to determine whether an employee has COVID-19 or an employer requiring all employees to report to the employer if they test positive for the virus). However, courts have found that the confidentiality obligation does not extend to medical information or a medical diagnosis that an employee voluntarily discloses to the employer. Likewise, although employers cannot require an employee to agree to disclose his or her COVID-19 diagnosis, the employer can ask for employee consent to the disclosure if done in a manner that is purely optional and cannot reasonably be construed as a requirement. Obviously, this is a sensitive area and employers should proceed with caution. Employers also should consider any state privacy laws that may come into play.
Finally, with respect to medical information that is obtained in response to an employer inquiry, the EEOC’s guidance cautions that the ADA’s confidentiality requirements continue to apply to managers and supervisors who obtain medical information while working remotely. For example, the employer should electronically store medical information in online locations that other employees cannot access. Similarly, supervisors and managers may want to use an employee’s initials rather an employee’s full name in written materials to provide additional safeguards of electronically stored confidential medical information. Whether maintained electronically or in hard copy, all medical information about a particular employee must be stored separately from the employee’s personnel file, thus limiting access to this confidential information.
Protecting Vulnerable Employees
While employers have a duty to provide a safe working environment to all employees, during the current pandemic employers may be particularly concerned about employees who are at a higher risk of serious illness from COVID-19. However, employers remain limited in their ability to protect vulnerable employees against their will. For example, the EEOC’s guidance makes clear that employers may not require that employees who are pregnant or over the age of 65 stay out of the workplace simply because the CDC has identified these groups as being at higher risk. Doing so would violate the Age Discrimination in Employment Act (ADEA) and the Pregnancy Discrimination Act. Similarly, an employer may not postpone start dates or make furlough or layoff decisions based on which employees fall into a high-risk category.
An employer also may not ask employees who are asymptomatic whether they have a medical condition that would place them in a high-risk category unless the inquiry is made for a permissible purpose under the ADA. For example, when an employee in a high-risk category that is considered a disability under the ADA requests an accommodation (such as telework) to minimize the risk of contracting COVID-19, the employer has an obligation to provide a reasonable accommodation so long as doing so would not cause undue hardship on the employer. Similarly, if an employee who is teleworking because of the pandemic needs a different type of accommodation than what he or she uses in the workplace, employers are obligated to provide a reasonable accommodation absent undue hardship. In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now (such as providing employees with temporary assignments or removing marginal functions). The EEOC nevertheless advises that given current circumstances, employers and employees should both try to be as flexible and as creative as possible when engaging in the interactive process. Employers should, however, consider how accommodations granted in response to COVID-19 may affect their accommodation obligations after the pandemic ends. For example, employers may choose to place an end date on the accommodation (such as when the employee returns to the workplace due to changes in government restrictions). In addition, while the EEOC states that an employer allowing telework in response to COVID-19 is not automatically required to grant telework to every disabled employee once the pandemic ends, the agency also states that temporary telework granted in response to COVID-19 may be relevant to considering renewed requests made later on. COVID-19 telework could serve as a trial period for determining whether the employee was able to perform the essential functions of his or her job while working remotely.
Bringing Employees Back to Work
As government stay-at-home orders and other restrictions are modified or lifted, employees will begin to return to their physical workplaces. The EEOC’s guidance states that employers may require employees who have been away from the workplace during the pandemic to provide a doctor’s note certifying fitness to return to work. Practically, however, given the demands on health care workers during and immediately after the pandemic, employers may need to consider other documentation that would provide similar assurances, such as a stamp or email from a local clinic. An employer also may require employees to wear protective gear (such as masks and gloves) and observe infection control practices (such as regular hand washing and social distancing protocols). However, where an employee with a disability needs a related reasonable accommodation under the ADA (such as non-latex gloves or modified face masks for interpreters) or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if doing so would not cause an undue hardship to the operation of the employer's business.
Published May 7, 2020.
