As employers continue efforts to return to normal amid a raging pandemic, they continue to be confronted with how to safely resume operations as guidance from the scientific community evolves while still complying with employment laws like the Americans with Disabilities Act (ADA).
The Equal Employment Opportunity Commission (EEOC) issued guidance earlier this year to address the intersection of the ADA and COVID-19 precautions. Chilivis Grubman previously presented a webinar on the ADA and other employment laws’ implications for re-opening in the midst of the pandemic, available here. On September 8, 2020, the EEOC updated its Technical Assistance Questions and Answers webpage to provide additional clarification. The guidance is a must-read for employers seeking to precautionary measures while re-opening.
Specifically, the ADA requires that any mandatory testing of employees must be “job related and consistent with business necessity.” Recognizing that an employee with COVID-19 poses a direct threat to the health of others in the workplace, the EEOC has stated that the ADA does not interfere with employers following the CDC’s recommendations regarding whether, when, and for whom testing or other screening measures are appropriate. However, the EEOC’s updated guidance notes that employers may screen or test a particular individual only if the employer has a reasonable belief, based on objective evidence, that the individual may have COVID-19. Employers are also reminded that they cannot ask employees whether their family members have COVID-19 or are suffering from COVID-19 symptoms, as such question are prohibited by the Genetic Information Nondiscrimination Act.
The updated guidance also addresses the confidentiality requirements of the ADA. Ordinarily, the ADA requires that an employer keep confidential an employee’s medical information. However, managers are not prevented from reporting an employee with symptoms or a diagnosis of COVID-19 to company officials so that appropriate actions, consistent with CDC guidance, can be taken. The EEOC emphasizes that employers should take as many steps as possible to limit disclosing the name of an employee who has symptoms of or has been diagnosed with COVID-19.
Lastly, the updated guidance addresses the issue of reasonable accommodations under the ADA. COVID-19 and the concomitant government orders to shelter in place led many employers to implement teleworking policies. This has raised many questions regarding pre-existing reasonable accommodations and future requests for reasonable accommodations. The EEOC notes that an employer does not have to automatically grant a reasonable accommodation request, even if the request pertains to temporary teleworking accommodations. If a request is made, the employer and employee should engage in a collaborative dialogue to determine whether the request is warranted or whether a different accommodation would suffice.