Many employers have found balancing their obligations under the Americans with Disabilities Act (the “ADA”) with their obligation to maintain a safe workplace in the era of COVID-19 to present special challenges. In order to assist in balancing those obligations, the EEOC published “Technical Assistance Questions and Answers” on March 18, April 9 and April 17, 2020. In its responses, the EEOC clarified how employers may implement guidelines and suggestions made by the CDC and by state and local public health authorities without running afoul of their obligations under the ADA. The assistance provided with regard to questions some of our clients have presented to us in the last several weeks are summarized below.
May Employees or Candidates for Employment be Screened for the Virus?
One of the more common questions employers have had during the COVID-19 crisis is whether they may ask employees if they are suffering from symptoms of the virus such as fever, chills, cough, shortness of breath or sore throat, and whether they may take employee’s temperatures. The EEOC said that questions regarding symptoms could be asked during the pandemic, and that employees’ temperatures may be measured, but reminded employers to maintain information about such inquiries in separate files for confidential medical records, rather than in the employees’ personnel files. Of course, such inquiries and examinations must be uniform – they may not be limited to only certain employees, or employees with known health conditions, but should made or implemented across the board.
As to candidates for employment, a conditional job offer must be extended before any such questions or body temperature measurements may be made, and conditional offers of employment may not be withheld from individuals who fall into categories of those more likely to suffer from the virus. If a candidate has the virus or the symptoms associated with it, the offer of employment may be withdrawn, or the start date of employment may be delayed.
Where new or current employees may be able to work through telework, the ability to do so should not be withheld from those who have the virus or the symptoms of the virus if they remain able to work.
May Symptomatic Employees be Excluded from the Workplace?
With regard to current employees who report or show symptoms of the virus, employers may require them to stay home or to leave the workplace. When such employees return to work, employers may require the presentation of a doctor’s note indicating that they are fit to return. However, the EEOC cautioned that circumstances may require flexibility in this regard as medical personnel may be too overburdened to be able to attend to detailed return to work documentation. It suggested that this may involve the acceptance of a form or stamp indicating that the employee was COVID free.
May Higher Risk Employees Be Entitled to Reasonable Accommodations to Limit Exposure?
The EEOC also clarified that if employees who have conditions that put them at greater risk from COVID-19 requests accommodations to limit or eliminate possible exposure, employers may be required to provide reasonable accommodations that do not pose an undue burden upon the employer. Where the condition may not be obvious, such as an employee who indicates that diabetes puts him or her at greater risk, medical documentation may be requested to determine whether the employees requires an accommodation and what types of accommodation may be effective to protect the employee while allowing the performance of essential job duties.
The types of accommodations that may be reasonable and effective will vary widely among employers, depending upon the type of workplace and the employee’s duties (and contact with other employees, or the public). Examples of such accommodations would include the installation of plexiglass or other barriers to distance employees from customers or the allowance of telework. The EEOC noted that given the limited time period of the COVID-19 crisis, employers and employees should be more flexible with regard to temporary restructuring of marginal job duties or temporary transfers to different positions or assignments that allow the employee to safely perform the essential functions of the job while limiting the chances of exposure. It further noted the question of whether an accommodation presents an undue burden or significant expense is to be evaluated at the present time, recognizing that while some accommodations may present an undue burden normally or on a permanent basis, they may not be an undue burden if only for a limited duration during the crisis.
EEOC materials related to COVID-19 are available at www.eeoc.gov/coronavirus.
Earp Cohn will remain at the forefront of all developments and will continue to provide real-time updates. In the meantime, companies and individuals needing guidance should reach out to our attorneys for assistance.