This week, the Equal Employment Opportunity Commission (EEOC) issued guidance on appropriate employee protections that employers should follow when reopening their workplaces. Of note, there are key policies that employers covered by the Americans with Disabilities Act (ADA) should be aware of. The following provides an overview of those policies.
Inquiries and medical testing
The guidance makes clear that the following practices are permitted for employers when reopening:
- An employer may ask an employee if he or she is experiencing symptoms of COVID-19, including fever, chills, cough, shortness of breath, or sore throat.
- An employer can require all employees to undergo a daily temperature check before entering the workplace, and may maintain a log of this information.
- Employers can make testing either mandatory or voluntary for all employees returning to the workplace. More specifically, an employer may administer a COVID-19 test to detect the presence of the virus before permitting an employee to enter the workplace if such testing is “job related and consistent with business necessity and an individual infected with COVID-19 would pose a direct threat – or a substantial harm – to the health of others in the workplace.” Any test administered should be vetted for accuracy and reliability.
Employers should not engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion. An employer should advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination.
Safeguarding testing and medical information
Any employee health or screening information received by the employer must be maintained as a confidential medical record in compliance with the ADA and other regulatory and legal requirements. The ADA requires employers to maintain all employee medical information separately from an employee’s personnel file. Any medial information related to employees obtained or taken from employees should go into that medical file, including statements of whether the employee has or suspects he/she has the disease, testing or temperature records, and any notes or other documentation pertaining to symptoms.
An employer may ask certain questions or request medical documentation to determine whether a disability necessitates an accommodation. Appropriate questions include:
- How does the disability create a limitation?
- How will the requested accommodation effectively address the limitation?
- Is there another form of accommodation that could effectively address the issue?
- How would a proposed accommodation enable the employee to continue to perform essential functions of his or her job?
If an individual has a disability that puts him or her at a greater risk for COVID-19 and requests actions to eliminate or reduce potential exposure, ADA-covered employers may offer reasonable accommodations on a temporary basis. These could include the following:
- Designate one-way aisles;
- Use plexiglass, tables or other barriers;
- Restructure marginal job duties on a temporary basis; and/or
- Temporarily transfer to a different position or modify work schedule to permit an individual with a disability to safely perform the essential job functions while reducing exposure to others in the workplace or while commuting.
If there is urgency to providing an accommodation, employers may choose to shorten the information exchange between employee and employer (known as the interactive process) and grant the request while awaiting medical documentation subject to a certain end date.
When evaluating whether an accommodation would pose a significant expense and an undue hardship on an employer, employers should weigh the costs of the accommodation against its current budget as well as account for any constraints created by the pandemic. An employer can ask employees with disabilities to request accommodations that they believe they will need upon reopening.
Return to work
The EEOC guidelines provide that an employer may require employees to wear face coverings and gloves and should observe infection control practices, such as regular hand washing and social distancing protocols. However, local requirements may be more stringent. For example, Executive Order 122 issued by New Jersey Governor Phil Murphy requires essential businesses that are permitted to maintain in-person operations to require their workers to wear a cloth face covering and gloves when in contact with customers and goods, except where doing so would inhibit that individual’s heath. Face coverings and gloves must be provided at the business’s expense. When an employee with a disability requests a reasonable accommodation under the ADA related to COVID-19 virus or protections (such as non-latex gloves, modified face masks, or gowns for those in wheelchairs), the employer should discuss the request and provide the modification or an alternative, if feasible and if not an undue hardship on the operation of the business under the ADA or Title VII.
Requiring symptomatic employees to stay home
The Centers for Disease Control and Prevention (CDC) states that employees exhibiting COVID-19 symptoms should leave the workplace. The new EEOC guidance clarifies that the ADA does not prohibit this practice. Employers can, and likely should, follow this advice and employ this practice upon resuming normal business operations.
Employers must keep in mind that, during the COVID-19 pandemic, guidance from public health agencies is constantly evolving. It is imperative that businesses stay up to date with developments and updates for worker and workplace protections as they continue to occur. This includes checking local and other public health guidelines and requirements in addition to the federal guidance from the EEOC, CDC and other agencies.
Click here for the EEOC guidance.
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Molly Kellett is an experienced litigator focusing on commercial litigation, construction matters and employment law. She counsels a wide array of clients and handles all stages of complex commercial matters, from contract ...
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