With efforts underway to have employers and employees gradually return to on-site workplaces, a number of questions and issues have arisen with respect to employee screening and testing for COVID-19 (“COVID” and/or “COVID-19”), reasonable accommodations for high risk individuals, personal protective equipment (PPE), COVID-related harassment, and age, pregnancy, and caregiver discrimination. Fortunately, the Equal Employment Opportunity Commission (EEOC) has released updated Guidance which employers and employees can utilize in formulating return-to-work and telework strategies. The Guidance highlights the importance of complying with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and the New Jersey Law Against Discrimination (NJLAD) while at the same time following guidance set forth by the Centers for Disease Control (CDC) and other state and local public health authorities intended to protect the health and safety of the workplace.
The EEOC has updated its Guidance several times since the start of the pandemic to address questions as they arise and plans to continue to address future questions such as whether any future vaccines will be required in the workplace. These updates should be monitored closely.
The ADA, which protects applicants and employees from disability discrimination, is relevant to pandemic preparation in at least three major ways. First, the ADA prohibits employers from engaging in disability-related inquiries and/or conducting medical examinations for all applicants and employees, including those who do not have ADA disabilities. Second, the ADA prohibits employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk of substantial harm even with reasonable accommodation). Third, the ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship).
Medical Screenings and Testing
Although the ADA generally prohibits disability-related inquiries and examinations, except under limited circumstances, employers may make COVID-related inquiries during the pandemic to protect the health and safety of the workplace. Such inquires and examinations need to be “job-related and consistent with business necessity.” In applying this standard to the current pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 in order to avoid this “direct threat” and protect the health of others.
The EEOC Guidance provides that upon employees returning to the workplace, employers may: (1) take employees’ temperatures; (2) ask employees if they have COVID-related symptoms or if they have interacted with anyone with COVID-related symptoms; (3) send employees home if they have COVID-related symptoms; and (4) require doctors’ notes or negative COVID tests prior to permitting previously diagnosed employees to return to the workplace.
The EEOC cautions that employers who test for COVID should use tests that are accurate and reliable based on Guidance from the Centers for Disease Control (CDC) and other public health authorities. However, requiring COVID antibody testing before allowing employees to return to the workplace is prohibited.
Employers should be open to alternative screening methods based on alleged medical conditions and provide reasonable accommodations if necessary and if there is no undue hardship.
With regard to job applicants, the EEOC states that, after extending a conditional job offer, employers may screen for COVID symptoms including taking employees’ temperatures, asking employees about their exposure to COVID, and requiring employees to take a COVID test if it requires the same for all employees in the same job type. If a job applicant exhibits symptoms, an employer may postpone the applicant’s start date or withdraw the job offer if the employer needs to immediately fill the position.
As always, employers should maintain confidentiality with regard to all medical issues, including employee symptoms, temperature results, and positive COVID-19 test results. Employers should only alert public health agencies or those who were in direct contact with the diagnosed employee of a positive test result.
If an employee tests positive, the employee’s identity cannot be disclosed to other employees. Employers may advise other employees that they may have been exposed to COVID-19 in the workplace, but the employer cannot identify the employee who tested positive.
Employers should maintain any COVID-19 or other medical information in separate confidential files only to be accessed by a limited number of employees who need to know such information.
Reasonable Accommodations and the “Interactive Process”
EEOC Guidance instructs that employers may be required to provide reasonable accommodations to employees as they return to work during the COVID-19 pandemic. The ADA obligations read in conjunction with the CDC’s list of high-risk individuals may result in the following employees seeking accommodations from their employers:
• Individuals 65 and older (if there is an underlying medical condition that puts them at a higher risk of severe illness from COVID);
• Individuals with underlying medical conditions such as those who are immunocompromised; obese; have cancer, serious heart conditions, diabetes, chronic kidney disease/undergoing dialysis, or liver disease; and
• Individuals with certain mental health conditions (i.e., anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder) who may have more difficulty managing the COVID-19 pandemic.
However, employers are not required to provide accommodations to employees with family members who may be at a higher risk of severe illness from COVID-19 due to an underlying medical condition. While employers are free to provide such flexibilities, it is not required. Employers must also be mindful to not engage in unlawful discrimination.
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The “Fear Factor”
Employers do not have to accommodate employees based upon a generalized “fear” or because they do not feel comfortable returning to work. However, if an employee has a legitimate health condition, including a mental health condition, that may require an accommodation, employers will need to engage in the “interactive process” described below.
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Reasonable Accommodations
In preparing for employees to return to on-site work, employers should communicate information to employees regarding the process of requesting an accommodation. Employers can do this even prior to employees returning to the workplace. If an employer has knowledge that an employee is at higher risk of developing a severe illness if the employee contracts COVID-19, an employer may inquire whether that particular employee would like to request a reasonable accommodation prior to returning to work. The employer should explain that all requests will be evaluated on a case-by-case basis and take into consideration the nature of the request and the need for an accommodation.
During the COVID-19 pandemic, reasonable accommodations may include:
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Additional protective equipment such as gowns or gloves;
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Changes to the work environment such as plexiglass, tables, or other barriers;
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Increasing the space between an employee with a disability and others;
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Temporary job restructuring of certain marginal job duties;
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Temporary transfer to a different position;
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Modifying a work schedule or shift assignment if doing so decreases contact with coworkers and/or the public when on duty or commuting;
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Moving where an employee performs work to increase social distancing;
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Providing leave; or
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Continued telework.
However, the EEOC’s general view is that employers are not required to permit teleworking solely because employees were allowed to telework previously if such an accommodation poses an undue hardship on the employer or if on-site presence is an essential function of the job. This is especially true in instances where an employer permitted employees to telework as an accommodation during the height of the pandemic when governmental quarantine and stay-at-home orders were in place.
• “Interactive Process” and Undue Hardship
If it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether an employee’s disability necessitates an accommodation, either the one requested by employee or any other. Possible questions for employees 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 the employee’s position.
If an employee requests a reasonable accommodation, the employer should engage in a discussion with the employee, referred to as an “interactive process,” which is designed to obtain information about how the requested accommodation would allow the employee to perform the essential functions of the position held by that employee, consider whether the accommodation is reasonable, and determine if the accommodation would impose an undue hardship on the employer. Courts have recognized an undue hardship when an accommodation causes significant difficulty or expense to the business and is not just a mere inconvenience.
In assessing undue hardship, employers should consider the particular job and workplace as well as the employer’s overall budget and resources. During the pandemic, employers may also consider any loss of income, the amount of discretionary funds available as compared to the employer’s other expenses, and the expected date when current restrictions on the employer’s operations will be lifted or when new restrictions will be added or substituted.
If the requested accommodation poses an undue hardship, an employer should consider alternative accommodations which would allow the employee to perform the essential job functions.
Employers are not necessarily required to provide employees with the exact requested accommodation, but only one that will enable the affected employee to continue to work. Employers should try to be flexible and creative and grant requests on a temporary basis if they need more time to assess the information.
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Direct Threat Analysis
Employers should not exclude employees from the workplace, or terminate them, solely because employees have disabilities that the CDC identifies as placing them at a higher risk for severe illness if they contract COVID.
Such actions may only be taken if an employee’s disability poses a “direct threat,” which is considered to be a significant risk of substantial harm to the employee’s own health and cannot be eliminated or reduced by granting reasonable accommodations.
The EEOC requires an employer to conduct an individualized assessment based on reasonable medical judgment about the employee’s disability (not the disability in general) using the most current medical knowledge and/or on the best available objective evidence.
To assess whether an employee’s disability poses a direct threat, consider:
• The employee’s particular disability (not the disability in general) in light of the most current medical knowledge or best available objective evidence;
• The duration of the risk;
• The nature and severity of the potential harm;
• The likelihood that the potential harm will occur;
• The imminence of the potential harm;
• The severity of the pandemic in a particular area;
• The employee’s own health and management of the employee’s disability;
• The employee’s particular job duties;
• The likelihood that the employee will be exposed to the virus at the worksite; and
• The ability of the employer to take measures to protect all workers, such as mandatory social distancing.
After a direct threat determination is made, an employee still cannot be excluded from returning to work if the employee can be provided with reasonable accommodations that would allow the employee to perform essential job functions. If no accommodations can be provided to permit the employee to return to work, the employer must consider accommodations such as allowing the affected employee to telework, go on leave, or reassigning the affected employee to safer locations.
• Personal Protective Equipment (PPE)
The EEOC advises that employers may require employees to wear personal protective equipment (PPE) such as masks, face coverings, and gloves, especially in light of state executive orders (such as in New Jersey) that require masks to be worn in public places where social distancing cannot be maintained.
If employees refuse to wear masks for medical or religious reasons, employers should consider whether a reasonable accommodation can be provided such as timeouts from wearing the mask, continued remote work, temporary reassignment to a different job or different tasks that would minimize social distancing, or changing employees’ physical work space. However, absent these reasons, employers may mandate masks, just like any other PPE.
Other Discrimination Issues
• National Origin Discrimination
Due to the suspected origin of the COVID-19 pandemic, employers should be aware of any discrimination or harassment against individuals of Asian descent and make sure it is addressed.
• Pregnancy Discrimination
Employers should not involuntarily exclude pregnant employees from the workplace or otherwise take adverse action against pregnant employees (i.e., layoff or furlough) if the decisions are solely based on the belief that the employees’ pregnancies place them at higher risk of severe illness if they contract COVID-19. However, keep in mind that certain pregnancy-related medical conditions may be ADA disabilities and employees experiencing those conditions may be entitled to reasonable accommodation under the ADA.
• Age Discrimination
Employers cannot exclude older workers from the workplace for benevolent reasons based on a belief that they may be at higher risk of severe illness if they contract COVID-19. Doing so constitutes age discrimination if employers do not exclude younger workers for the same reason. However, employers should note that, while the Age Discrimination in Employment Act (ADEA) does not include a right to reasonable accommodation for older workers due to age alone, the EEOC advises that employers may provide flexibility to workers of age 65 and older. Additionally, workers over age 65 also may have medical conditions that allow them to seek reasonable accommodations under the ADA.
• Caregivers
Employers may provide flexible working arrangements to caregivers as long as they are not treating employees differently based on sex or other EEO-protected characteristics.
Takeaways & Next Steps
In light of the EEOC Guidance and in preparing for a return-to-work, employers should:
• Review and update workplace policies regarding employee testing and screening, confidentiality of medical information, reasonable accommodations, discrimination and harassment, telecommuting, and infection control protocols (including social distancing and PPE);
• Develop a procedure for handling accommodation requests to ensure consistency and compliance with federal, state, and local antidiscrimination laws;
• Notify employees of the process for requesting an accommodation and provide information regarding the appropriate employer representative or agent to contact;
• Review and update job descriptions to ensure accuracy. Employers should make sure to distinguish between “marginal” and “essential” job duties in assessing whether on-site attendance is an “essential” job duty for a particular role and/or whether duties have changed due to a restructuring of staff or duties;
• Educate managers on complying with testing and screening procedures, handling confidential medical information, identifying and responding to COVID-related accommodation requests, and addressing discrimination and harassment;
• Be creative and flexible when it comes to providing reasonable accommodations and flexibility in work arrangements in light of the pandemic; and
• Enforce and apply all policies in a uniform and nondiscriminatory manner.
To read the entirety of the EEOC Guidance, please click these links:
What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.
The EEOC provided an initial webinar outlining some of its Guidance: https://www.youtube.com/watch?v=i8bHOtOFfJU
New Jersey’s Division on Civil Rights also issued Guidance under the NJ LAD.
Please note that state legislation and legal guidance may vary in protections from the federal legislation and legal guidance cited above.
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.
