EEOC ADA and Title VII Guidance for Employers on COVID-19

The EEOC has provided employers with supplemental guidance on navigating the COVID-19 outbreak, addressing issues such as COVID-related harassment and screening employees who report to work.

The EEOC reminded employers that while the anti-discrimination laws, including the Americans with Disabilities Act ("ADA") and the Rehabilitation Act, continue to apply during the COVID-19 pandemic, these laws do not interfere with, or prevent employers from following, the guidelines and suggestions issued by the CDC or state and local public health authorities regarding COVID-19.

Employee Medical Information

• Employers may screen employees who enter the workplace and should rely on the CDC, other public health authorities for guidance on symptoms associated with the disease.

For example, If an employee entering the workplace requests an alternative method of screening due to a medical condition, the employer should treat this request as a reasonable accommodation request under the ADA or Rehabilitation Act. If the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process.

Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability and what specific limitations require an accommodation, and request supporting medical documentation. Similarly, if an employee requests an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.

• An employer may not exclude an employee from the workplace solely because the employee has a medical condition that puts the employee at a higher risk for severe illness due to COVID-19.

Under the ADA, an employer can only take such an action if the employee’s disability poses a “direct threat” to his or her health that cannot be eliminated or reduced with reasonable accommodation. The guidance notes that the “direct threat” requirement is a high standard to meet, and the employer must show that the employee has a disability that poses a “significant risk of substantial harm” to his or her own health.

An employer would be required to make an assessment, beyond the employee having a medical condition on the CDC list, that includes the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Even if the employer can show the employee is a “direct threat” to his or her own health, the employer still cannot exclude the employee unless, after engaging in the interactive process with the employee and considering all options (e.g. telework, leave, reassignment), there is still no effective reasonable accommodation.

• Employers may not require antibody testing before employees re-enter the workplace.

Under the ADA, antibody testing is considered a medical examination and the testing currently does not meet the ADA’s standard of being “job related and consistent with business necessity.” The EEOC has noted the difference between an antibody test and a test to determine if someone has an active case of COVID-19 (i.e., a viral test). COVID-19 viral tests are permissible under the ADA.

• The ADA requires that all medical information about an employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. 

An employer may store medical information related to COVID-19 (including 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) in existing employee medical files, so long as access is limited in accordance with the requirements of the ADA.

• If an employer requires all employees to have a daily temperature check before entering the workplace, the employer may keep a log of the results as long as the information is stored in a manner that maintains confidentiality.

Reasonable Accommodations Relating to COVID-19

• Employers may invite employees to request reasonable accommodations prior to returning to the workplace, even if there is no set date to return to work. The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact – if they wish – to request an accommodation for a disability that they may need upon return to the workplace. If requests are received in advance, the employer may begin the interactive process.
• An employer may not postpone a start date or withdraw a job offer because the individual being hired is 65 years old or pregnant, which would place them at higher risk from COVID-19. However, an employer may allow or require telework or discuss with these individuals if they would like to postpone the start date.
• If a job may only be performed at the workplace, there may be reasonable accommodations for individuals with disabilities who are at a higher risk from COVID-19 which allows them to perform the job.
• An employee with an underlying condition that puts the employee at a higher risk for severe illness as a result of COVID-19 must inform the employer, either directly or through a third party representative (such as a doctor), that he or she requires a reasonable accommodation for the underlying condition. The employee or representative should communicate to the employer that the employee has an underlying condition that necessitates a change to meet a medical need. An employee or representative may request a reasonable accommodation in conversation or in writing, but using the term “reasonable accommodation” in this communication is not required.
• An employer may still engage in the interactive process and request information from an employee about why an accommodation is needed (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 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). 
• An employer that provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, should not treat employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.
• Similarly, an employer may not exclude an employee from the workplace involuntarily due to pregnancy. Sex discrimination under Title VII includes discrimination based on pregnancy. Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough. The ADA provides protection for pregnancy-related medical conditions – if an employee makes a request for a reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.  Further, the Pregnancy Discrimination Act requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.

This is a challenging time and events are changing rapidly. EEOC guidance and interpretation of what is permissible under the ADA and Title VII are evolving and may continue to change as circumstances develop.