How can employers best comply with federal anti-discrimination laws while responding to the coronavirus crisis? The Equal Employment Opportunity Commission (EEOC) issued updated guidance for employers about reasonable accommodations under the Americans with Disabilities Act (ADA) and more.
“The EEOC guidance has also helped clarify important issues regarding older workers and pregnant workers,” noted Sharon Masling, an attorney with Morgan Lewis in Washington, D.C.
The Society for Human Resource Management (SHRM) had asked EEOC Chair Janet Dhillon to provide additional COVID-19-related guidance for employers and human resource professionals. “We believe it is especially important to provide employers with guidance on these topics now given the mass reopening of businesses across the country,” said Emily M. Dickens, SHRM’s corporate secretary, chief of staff and head of government affairs.
“Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves,” the EEOC said. “Therefore, employers should continue to follow the most current information on maintaining workplace safety.”
The agency also recently voted to send a notice of proposed rulemaking to the White House Office of Management and Budget that would allow employers to offer small incentives to participate in voluntary wellness programs without violating the ADA. The rule states that to be deemed voluntary, most employer-sponsored wellness programs that include a disability-related inquiry or medical examination “may offer no more than ‘de minimis’ incentives to encourage employees to participate,” noted Joyce Walker-Jones, senior attorney advisor for the EEOC’s Office of Legal Counsel, during a hearing on June 11.
In earlier coronavirus-related guidance, the EEOC said employers may ask workers if they are experiencing COVID-19 symptoms, but they must treat all information about employee illness as a confidential medical record in compliance with the ADA.
“During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus,” the EEOC said. Symptoms of COVID-19 include fever, chills, cough, shortness of breath and sore throat.
The EEOC is also allowing employers to test for the virus as a medical assessment for employees returning to work and for candidates when a conditional offer of employment has been made. Employers can take employees’ temperatures, but they should be aware that some people with COVID-19 will not have a fever, the agency noted.
“In my mind, any pandemic screening or testing is truly for facility-access purposes and should not be used to terminate employment or disqualify a candidate, since viral illnesses pass, and those affected will be eligible to come into the workspace once recovered,” said Dr. Todd Simo, chief medical officer at employment background screening firm HireRight.
The EEOC’s new guidelines note that a request for an alternative method of worksite screening due to a medical condition or a religious belief is a request for accommodation and should be evaluated accordingly, explained Lauren Goetzl, an attorney with Fisher Phillips in Washington, D.C. Employers may also provide information to employees about requesting disability accommodations prior to announcing a date for a return to the workplace, so long as they provide the information to all employees. Goetzl said the notice may:
- Include a list of all medical conditions identified by the U.S. Centers for Disease Control and Prevention (CDC) that may place people at higher risk of serious illness if they contract COVID-19.
- Provide instructions about who employees should contact for requests and questions.
- Suggest that the employer is willing to consider requests on a case-by-case basis from employees who have listed conditions.
If employers receive requests for accommodation in advance, she noted, employers can begin an interactive dialogue, but as always, they should ensure that the designated employee who receives the inquiries understands how to handle them in compliance with any federal nondiscrimination laws that may apply.
“The EEOC provided additional guidance on the application of federal laws to COVID-19 return-to-work issues,” Goetzl said. With regard to issues of age discrimination, the EEOC reminded employers that they can’t treat workers age 65 and older less favorably than other employees, even if their efforts are intended to protect employees who are at a higher risk of severe illness from COVID-19.
The EEOC noted that employers can, however, provide additional flexibility to employees who are 65 years of age and older, “even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.”
Pregnancy and Family Responsibilities
“Employers may also not exclude a pregnant worker from the workplace out of fear for the woman’s safety,” Masling explained. In addition, pregnant workers are entitled to reasonable accommodations under the Pregnancy Discrimination Act and, if they have accompanying medical complications, under the ADA.
“None of this is new law,” she said. “But it is very helpful guidance in how to apply existing law to new circumstances.”
“The EEOC also weighed in on issues of family responsibilities,” Goetzl observed. The agency noted that employers can provide flexibility to employees, so long as they do not treat employees differently based on gender or other protected characteristics. For instance, employers shouldn’t offer female employees more favorable treatment than male employees because of a gender-based assumption about who may be the primary caregiver.
“Conversely, when deciding whom to bring back to work, do not make assumptions that women are more likely than men to have caregiving responsibilities and hence will not be able to focus sufficiently on their work,” Masling said.
Returning to the Workplace
“Any return-to-office protocol needs to incorporate as a baseline all the CDC recommended practices of social distancing, facility cleaning, offering personal protective equipment and so forth,” Simo said. “COVID-19 testing programs are an additional measure for employers to safeguard their employees as they return to work, but such testing programs do not eliminate the need for the baseline measures.”
Masling said employers should be sure to have reasonable accommodations systems in place and to have interactive conversations with employees with disabilities and pregnant workers. Consider whether to allow alternative work arrangements, such as telework, for employees who may not have a legal right to that accommodation but could benefit from it, such as employees over the age of 65 or those living with a family member who is at high risk.
“Be sure these policies are communicated to anyone with supervisory or decision-making authority, such as managers or HR personnel, so that the requests are handled properly and in a consistent fashion,” Masling added. “Share these policies with all employees.”