The Equal Employment Opportunity Commission (EEOC) has issued another updated guidance for employers about how not to violate the Americans With Disabilities Act (ADA) when dealing with employees returning to work from the Coronavirus lockdown.
“A few of the updates are painfully obvious, but most will very helpful to employer,” says Robin Shea, a partner with the law firm of Constangy Brooks Smith & Prophete. The commission first issued guidelines for what employers can and cannot do in regard to their returning workers earlier this summer. Restrictions range from how and when diseases testing can take place to what sort of questions an employee can be asked regarding the disease.
The September update reinforces EEOC’s views for employers who may not be aware of the finer details of the commission’s positions. Shea outlines these policies:
Employers are allowed to test employees for COVID-19 (but not COVID-19 antibodies). Employers are responsible for keeping up with the latest guidance from the Centers for Disease Control and Prevention (CDC). This also means periodically checking the CDC website and the website for the Food and Drug Administration for updates.
It’s also fine for employers to ask employees physically entering the workplace about symptoms of COVID-19 and whether they’ve been tested, and to not allow them in the workplace if the answers aren’t satisfactory. On the other hand, employers definitely cannot ask teleworking employees about COVID testing or symptoms.
The employer cannot ask the employee about whether the employee’s family members have COVID or symptoms because that would violate the Genetic Information Nondiscrimination Act (GINA). The employer also can ask generally whether the employee has been exposed to anyone who has chosen to COVID or symptoms of it.
If an employee refuses to be tested or to answer questions, the employer doesn’t have to allow the employee to enter the workplace, Shea explains. Keep in mind that EEOC encourages employers to first ask why the employee won’t comply, and to explain the rationale for the testing or questions and reassure the employee that the information will be kept confidential.
More things an employer can legally do:
● Ask onsite employees who say they aren’t feeling well about the details of their symptoms (as necessary to determine whether they might have COVID).
● Ask employees why they are absent from work.
● Ask employees returning from travel where they went, to determine whether they visited a COVID “hot spot.”
If an employer learns that an employee has COVID or symptoms of the disease, it can, of course, notify “appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.”
Employers also should not disclose the name of the employee unless they absolutely have to, and anyone who gets the name should be warned to keep it confidential.
The employer should not provide more than a generic description to other employees in the location or department of the employee who is sick. EEOC acknowledges that in a small workplace, even if the employee isn’t identified by name, everybody may figure out who it is. But employers are still prohibited from confirming or revealing the employee’s identity.
If an employee learns that a co-worker is having COVID symptoms, it will not violate the law for the employee to disclose that information to the employer. “But, of course, the employer will have to be very careful about how to handle that information once received,” Shea warns.
An employer can legally tell employees that an employee with COVID is working remotely. (Just leave out the “with COVID” part, Shea points out.)
If management or human resources is working remotely and it isn’t possible to store employee medical information as required by the ADA, it’s okay to keep the employee medical information at home. But the teleworking managers should do whatever they can to “safeguard this information,” whether it’s on paper or in electronic form, “to the greatest extent possible” until it can be properly stored.
Shea says it’s fine for employers to “invite” teleworking employees to inform the employer now about any reasonable accommodations they may need when they go back to the worksite, and to begin the interactive process early. Accommodation needs might be different, depending on whether the employee is working remotely or working on site.
She recommends that employers should consider the appropriate accommodations based on the circumstances. Keep in mind that it may be necessary to provide an “interim accommodation” while the employer and employee are engaged in the interactive process or “waiting for additional information.”
“This is a big one: Allowing employees to telework during COVID-related shutdowns does not necessarily mean that the employer has to continue to allow teleworking after the worksite is back up and running,” Shea advises. This may be the case if an employee has a disability and teleworking would be a reasonable accommodation, but if an accommodation other than telework would be effective, the employer can choose that.
Also, even if the employer excused employees from performing one or more essential functions of their job during the shutdown, it doesn’t lose the right to resume treating essential functions as such once the worksite reopens. EEOC says that if an employer temporarily excused performance of one or more essential functions when the workplace was closed and allowed employees to telework doesn’t mean the job’s essential functions were permanently changed, telework is always a feasible accommodation, or does not pose an undue hardship.
“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,” EEOC states.
However, Shea says that if the employer had refused to allow teleworking as a reasonable accommodation in normal times, and then allowed employees to telework during the COVID crisis, the employer should treat the COVID teleworking as a “trial period” and make a fresh assessment as to whether teleworking could work for an employee who needs it as a reasonable accommodation.
“Although an employer should be diligent in responding to reasonable accommodation requests, EEOC recognizes that some employers may have backlogs and delays resulting from COVID-related disruption, and that’s acceptable,” Shea notes. “EEOC encourages employers and employees to find interim solutions while considering which accommodations to make in the longer term.”
Finally, Shea offers what she calls “Captain Obvious” advice: Don’t select people for furlough or layoff based on “race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity.”
In addition, make sure that you don’t let your younger workers telework while refusing to allow older workers to do it. “On the other hand, if the older worker thinks an Etch-a-Sketch is a laptop, you might not have a choice,” she admits.