EEOC Updates Employer Guidance on Coronavirus and the ADA

On June 17, 2020, the Equal Employment Opportunity Commission (EEOC) issued an additional answer to frequently asked questions (FAQs) about how employers should comply with the Americans with Disabilities Act (ADA) while also observing all applicable emergency workplace safety guidelines during the coronavirus pandemic. The new FAQ, which addresses antibody tests (see A.7), was added to guidance that the EEOC previously issued on March 18, 2020, and updated on April 9, 17, 23, May 7, and June 11, 2020. 

The FAQs draw from the EEOC’s existing pandemic publication, Pandemic Preparedness in the Workplace and the ADA, to help employers navigate workplace issues related to the coronavirus (COVID-19). In particular, the EEOC’s FAQs include information from a section of the publication that answers employer questions about what to do after a pandemic has been declared. This HR Compliance Bulletin contains the EEOC’s updated FAQs. 

Employers are subject to the ADA if they have 15 or more employees. Smaller employers may be subject to similar rules under applicable state or local laws. 

 

Action Steps 

All employers should follow the most current guidelines and suggestions for maintaining workplace safety, as issued by the Centers for Disease Control and Prevention (CDC) and any applicable state or local health agencies. 

Employers with 15 or more employees should also become familiar with and follow the guidance provided in the EEOC’s FAQs about ADA compliance. These and all smaller employers should ensure that they comply with state and local anti-discrimination laws as well. 

 

A. Disability-Related Inquiries and Medical Exams

A.1. How much information may an employer request from an employee who calls in sick, to protect the rest of its workforce during the COVID-19 pandemic? 

During a pandemic, ADA-covered employers may ask 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. 

 

A.2. (Added April 9, 2020): 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? 

As public health authorities and doctors learn more about COVID-19, they may expand the associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources to guide emerging symptoms related to the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would directly threaten health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste and gastrointestinal problems, such as nausea, diarrhea, and vomiting. 

 

A.3. When may an ADA-covered employer take employees’ body temperature during the COVID-19 pandemic? 

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. 

 

A.4. May employers require employees to stay home if they have COVID-19 symptoms? 

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. 

 

A.5. When employees return to work, may an employer require doctors’ notes certifying their fitness for duty? 

Yes. These inquiries are permitted under the ADA either because they would not be disability-related or justified under the ADA standards for disability-related questions. As a practical matter, however, doctors and other healthcare professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary. For example, employers could rely on local clinics to provide a form, stamp, or email to certify that an individual does not have the pandemic virus. 

 

A.6. (Added April 23, 2020): May an employer administer a COVID-19 test (a test to detect the COVID- 19 virus) before permitting employees to enter the workplace? 

The ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to others’ health. Therefore an employer may choose to administer COVID-19 testing to employees before entering the workplace to determine if they have the virus. 

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing and guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire it later. 

Based on guidance from medical and public health authorities, employers should still require—to the greatest extent possible—that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19. 

 

A.7. NEW AS OF JUNE 17, 2020: Does the ADA allow an employer to require antibody testing before permitting employees to re-enter the workplace? 

No. An antibody test constitutes a medical examination under the ADA. In light of the CDC’s interim guidelines stating that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job-related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not permitted under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (that is, a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA. The EEOC will continue to monitor the CDC’s recommendations closely and update this discussion in response to changes. 

 

B. Confidentiality of Medical Information

B.1. (Added April 9, 2020): 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? 

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. An employer may store all medical information related to COVID-19 in existing medical records. This information 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. 

 

B.2. (Added April 9, 2020): 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? 

Yes. The employer needs to maintain the confidentiality of this information. 

 

B.3. (Added April 9, 2020): Can an employer disclose an employee’s name to a public health agency when it learns that the employee has COVID-19? 

Yes. 

 

B.4. (Added April 9, 2020): 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? 

Yes. The staffing agency or contractor may notify the employer and disclose the employee’s name because the employer may need to determine if this employee had contact with anyone in the workplace. 

 

C. Hiring and Onboarding

C.1. If an employer is hiring, may it screen applicants for COVID-19 symptoms? 

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. This ADA rule applies regardless of whether the applicant has a disability. 

 

C.2. May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam? 

Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever. 

 

C.3. May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

Yes. According to current CDC guidance, an individual with COVID-19 or symptoms associated with it should not be in the workplace. 

 

C.4. Can an employer withdraw a job offer when it needs the applicant to start immediately, but the individual has COVID-19 or its symptoms? 

Based on current CDC guidance, this individual cannot safely enter the workplace. Therefore, the employer may withdraw the job offer. 

 

C.5. (Added April 9, 2020): May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, which places them at higher risk from COVID-19? 

No. The CDC has identified those who are 65 or older, or pregnant women, as being at higher risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or discuss with these individuals if they would like to defer the start date. 

 

D. Reasonable Accommodation

In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations. JAN’s materials specific to COVID-19 are available here. 

 

D.1. (Added April 9, 2020): 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 pre-existing disability, is at higher risk from COVID-19? 

There may be reasonable accommodations that could offer protection to an individual whose disability puts him at higher risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs temporarily without causing undue hardship on the employer. 

Low-cost solutions achieved with materials already on hand or easily obtained may be effective. Accommodations for reduced contact with others due to a disability may include changes to the work environment. By designating one-way aisles, using plexiglass, tables, or other barriers to ensure safe distances whenever feasible per CDC guidance or other accommodations reduces exposure. 

Flexibility by employers and employees is vital 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 safely perform the job’s essential functions while reducing exposure to others in the workplace while commuting.

 

D.2. (Added April 9, 2020): If an employee has a pre-existing 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)? 

Although many people feel significant stress due to the COVID-19 pandemic, employees with certain pre-existing mental health conditions may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 epidemic. 

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. 

 

D.3. (Added April 9, 2020): 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?

Not necessarily. An employer may prioritize discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance. 

 

D.4. (Added April 9, 2020): What if an employee was already receiving a reasonable accommodation before the COVID- 19 pandemic and now requests an additional or altered accommodation? 

An employee who was already receiving a reasonable accommodation before the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. For example, an employee who is teleworking because of the pandemic may need a different accommodation type than what he uses in the workplace. The employer may discuss with the employee whether the same or a separate disability is the basis for this new request and why an additional or altered accommodation is needed. 

 

D.5. (Added April 17, 2020): 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?

Yes, 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 significant life activity, or a history of a significantly limiting impairment).

 

D.6. (Added April 17, 2020): During the pandemic, may an employer still engage in the interactive process and request an employee’s information about why an accommodation is needed? 

Yes, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one they asked for or any other. Possible questions for the employee may include: 

• How the disability creates a limitation; 
• How the requested accommodation will effectively address the limitation; 
• Whether another form of accommodation could effectively address the issue; and 
• How a proposed accommodation will enable the employee to continue performing the “essential functions” of their position (the fundamental job duties). 

 

D.7. (Added April 17, 2020): If there is some urgency to providing accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide temporary accommodation? 

Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee, known as the “interactive process,” and grant the request. When government restrictions change or are partially or fully lifted, the need for accommodations may also change. This change 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. 

Whatever the reason for shortening or adapting the interactive process, an employer may choose to place an end date on the accommodation. For example, the employer can state either a specific date such as May 30, or when the employee returns to the workplace on a part- or full-time basis 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 medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would protect that an employee may need because of a pre-existing disability that puts him or her at higher risk during the pandemic. These requirements could also apply to employees who have disabilities exacerbated by the pandemic. 

Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.

 

D.8. (Added April 17, 2020): May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace? 

Yes. Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens. Employers may begin the “interactive process”—the discussion between the employer and employee focused on whether the impairment is a disability and why an accommodation is needed. 

 

D.9. (Added April 17, 2020): Are the pandemic circumstances relevant to whether a requested accommodation can be denied because it poses an undue hardship? 

Yes. An 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 before the pandemic may pose one now. 

 

D.10. (Added April 17, 2020): What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” during the COVID-19 pandemic? 

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing specific accommodations in light of the particular job and workplace facts. For example, it may be significantly more difficult in the pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. It may be significantly more challenging to provide employees with temporary assignments, remove marginal functions, or readily hire temporary workers for specialized positions. 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.

 

D.11. (Added April 17, 2020): What types of undue hardship considerations may be relevant to determine if a requested accommodation poses a “significant expense” during the COVID-19 pandemic? 

Before the pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the entire entity’s budget and resources and not just its components). However, the sudden loss of income stream because of the pandemic is relevant. 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). These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of accommodation against its current budget while considering constraints created by the pandemic. For example, even under present circumstances, there may be many no-cost or very low-cost accommodations. 

 

D.12. (Added April 23, 2020): Do the ADA and the Rehabilitation Act apply to applicants or employees classified as “critical infrastructure workers” or “essential critical workers” by the CDC?

Yes. These CDC designations, or any other designations of some employees, do not eliminate coverage under the ADA or the Rehabilitation Act, or any other equal employment opportunity law. Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee. Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship. 

 

D.13. (NEW AS OF JUNE 11, 2020): Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition? 

No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. 

For example, under the ADA, an employee without a disability cannot telework as an accommodation to protect a family member with a disability from potential COVID-19 exposure.

Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer wanting to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected trait.

 

E. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics

E.1. (Added April 9, 2020): What practical tools are available to employers to reduce and address workplace harassment that may arise due to the COVID-19 pandemic? 

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.

Practical anti-harassment tools provided by the EEOC for small businesses can be found here: 

• Anti-harassment policy tips for small businesses; 
• Select Task Force on the Study of Harassment in the Workplace (includes detailed recommendations and tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated): 
  • Report;
  • Checklists for employers who want to reduce and address harassment in the workplace; and
  • Chart of risk factors that lead to harassment and appropriate responses. 

 

E.2. (Added April 17, 2020): Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace? 

Yes. 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. 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. An employer may also clarify that it will immediately review any allegations of harassment or discrimination and take appropriate action. 

 

E.3. (NEW AS OF JUNE 11, 2020): How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian?

Managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are perceived to be of Chinese or other Asian national origins, including the coronavirus or its roots. 

All employers covered by Title VII should ensure that management understands in advance how to recognize such harassment. Harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and in-person between employees. Harassment of employees at the worksite may also originate with contractors, customers, or clients, or, for example, with patients or their family members at healthcare facilities, assisted living facilities, and nursing homes. Managers should know their legal obligations and be instructed to quickly identify and resolve potential problems before they rise to unlawful discrimination.

Employers may choose to send a reminder to the entire workforce noting Title VII’s prohibitions on harassment, reminding employees that harassment will not be tolerated, and inviting anyone who experiences or witnesses workplace harassment to report it to management. Employers may tell employees that harassment can result in disciplinary action up to and including termination. 

 

E.4. (NEW AS OF JUNE 11, 2020): An employer learns that an employee who is teleworking due to the pandemic is sending harassing emails to another worker. What actions should the employer take? 

The employer should take the same actions it would take if the employee were in the workplace. Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration. 

 

F. Furloughs and Layoffs

F.1. (Added April 9, 2020): Under the EEOC’s laws, what waiver responsibilities apply when an employer conducts layoffs? 

Special rules apply when an employer offers employees severance packages in exchange for a general release of all discrimination claims against the employer. More information is available in EEOC’s technical assistance document on severance agreements. 

 

G. Return to Work

G.1. (Added April 17, 2020): As stay-at-home government 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? 

The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Questions and regular medical exams meet this standard if necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistently 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. 

For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return by certain types of critical workers.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in screening and exclusion decisions.

 

G.2. (Added April 17, 2020): An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective equipment. Must an employer grant these requests?

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular handwashing and social distancing protocols).

However, where an employee with a disability needs a reasonable accommodation under the ADA or a religious accommodation under Title VII, the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.

 

G.3. (Added May 7, 2020): What does an employee need to do to request reasonable accommodation from his or her employer because he or she has one of the medical conditions that the CDC says may put him or her at higher risk for severe illness from COVID-19?

An employee – or a third party, such as an employee’s doctor – must let the employer know that he or she needs a change for a reason related to a medical condition (here, the underlying condition). Individuals may request accommodation in conversation or writing. While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, they may do so.

The employee (or his or her representative) should communicate that they have a medical condition that necessitates a change to meet a medical need. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability. If there is a reasonable accommodation, barring undue hardship, that can be provided.

 

G.4. (Added May 7, 2020): The CDC identifies several medical conditions that might place individuals at a “higher risk for severe illness” if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that their health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation? 

First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee. The employer cannot exclude the employee solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.

Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard. As an affirmative defense, immediate threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his health under federal regulations. A direct threat assessment cannot be based solely on the condition being on the CDC’s list. The determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge or on the best available objective evidence. 

The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the potential harm’s imminence. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s health (for example, is the employee’s disability well-controlled) and their specific job duties. A determination of direct threat would also include the likelihood that an individual will be exposed to the worksite virus. Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to their health, the employer still cannot exclude the employee from the workplace. The employer can exclude the employee if there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk to be safe for the employee to return to the workplace while still permitting the performance of essential functions. This accommodation can involve an interactive process with the employee. If there are no accommodations that allow this, then an employer must consider accommodations such as telework, leave or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework). An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation. 

 

G.5. (Added May 7, 2020): What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self?

Accommodations may include new or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace. Accommodations also may include additional or enhanced protective measures (for example, erecting a barrier that provides separation between an employee with a disability and coworkers or the public or increasing the space between an employee with a disability and others).

Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a specific position). Also, accommodations may include temporary modification of work schedules or moving the location where one performs work (for example, moving a person to the end of a production line rather than in the middle of it, if that provides more social distancing).

These are only a few ideas. Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. An employer and employee should discuss possible ideas. The Job Accommodation Network also may be able to assist in helping identify possible accommodations. As with all reasonable accommodation discussions during this pandemic, employers and employees are encouraged to be creative and flexible. 

 

G.6. (NEW AS OF JUNE 11, 2020): As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements?

Yes. 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, even if no date has been announced for their return. If requests are received in advance, the employer may begin the interactive process. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19. They can also provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.

An employer may also send a general notice to all employees designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities. 

Either approach is consistent with the ADEA, the ADA, and the CDC guidance dated May 29, 2020, emphasizing the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness. 

Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, concerning accommodations due to a medical condition, a religious belief, or pregnancy.

 

G.7. (NEW AS OF JUNE 11, 2020): What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition?

Alternative screening methods due to a medical condition is a request for reasonable accommodation, and an employer should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act. If the requested change is easy to provide an 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 apparent or already known, an employer may ask the employee to establish that the condition is a disability and what specific limitations require an accommodation. If necessary, an employer also may request medical documentation to support the employee’s request, and then determine if that accommodation or a sufficient alternative accommodation can be provided absent undue hardship.

Similarly, if an employee requested an alternative screening method as a religious accommodation, the employer should determine if accommodation is available under Title VII.

 

H. Age

H.1. (NEW AS OF JUNE 11, 2020): The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group. Do employees age 65 and over have protections under federal employment discrimination laws? 

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on their being 65 or older, even if the employer acted for altruistic reasons such as protecting the employee due to a higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. As such, they may request reasonable accommodation for their disability as opposed to their age.

 

I. Caregivers/Family Responsibilities

I.1. (NEW AS OF JUNE 11, 2020): If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations?

Employers may provide any flexibility as long as they do 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.

 

J. Pregnancy

J.1. (NEW AS OF JUNE 11, 2020): Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy? 

No. Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. Even if motivated by benevolent concern, an employer cannot single out workers based on pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

 

J.2. (NEW AS OF JUNE 11, 2020): Is there a right to accommodation based on pregnancy during the pandemic?

Two federal employment discrimination laws may trigger accommodation for employees based on pregnancy. 

First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability. 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. 

Second, as amended by the Pregnancy Discrimination Act, Title VII requires that women explicitly 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 amendment 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. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII. 

 

This Compliance Bulletin is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.