COVID-19 Response: What the EEOC Wants Employers to Know About Disability Accommodation Requests, Harassment, and Returning to Work in the Current COVID-19 Landscape

New York, N.Y. (April 30, 2020) - Recently, the United States Equal Employment Opportunity Commission (EEOC) updated its recommendations for employers endeavoring to comply with the Americans with Disabilities Act (ADA) and other employment laws amidst the challenges posed by the COVID-19 pandemic. Most saliently, the guidance includes a new section on returning employees to the workplace. The EEOC’s guidance includes the following:

Disability-Related Inquiries and Medical Exams

An employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. The ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity.” Thus, in applying this standard to the current environment, employers may take steps to determine if employees entering the workplace have the virus because such an individual will pose a direct threat to the health of others. Taking employees’ temperatures is permitted.
The EEOC cautions, however, that employers should ensure that the tests are accurate and reliable by reviewing guidance from the U.S. Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), and other pubic heath authorities. Employers should consider the frequency of false-positives or false-negatives and must also note that testing only reveals if the virus is currently present. Further, employers should still require that employees observe social distancing, regular handwashing, and other infection control measures.

Disability Accommodation Requests During the Pandemic

If an employee requests an accommodation for a medical condition either at home or in the workplace, and the disability is not obvious or already known, an employer must engage in the interactive process to determine if the employee is disabled and whether there is a reasonable accommodation that would enable the employee to work. Specifically, the employer may request information and medical documentation to determine if the condition is, in fact, a disability under the ADA, i.e., whether the employee has a “physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment.”
Further, employers may request information from the employee to address fashioning a reasonable accommodation and assessing the accommodation requested by the employee. According to the EEOC, employers may inquire about (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 his or her position.
Where there is some urgency to providing an accommodation or the employer has limited time available to discuss the request, an employer may choose to forgo or shorten the interactive process and grant the request. Employers may also choose to provide temporary accommodations while they await medical documentation, for example, or due to changes in government restrictions. An employer may choose to place an end date on the accommodation or provide a certain accommodation on an interim or trial basis. The EEOC notes that choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts him or her at greater risk during this pandemic or for an employee who has a disability that has been exacerbated by COVID-19. Employees may also request an extension of the accommodation, which an employer must consider, particularly in light of extended or new government restrictions impacting the workplace.
Employers may ask employees with disabilities if they will need reasonable accommodations in the future when the workplace re-opens. Employers can begin the interactive process now before employees return to the workplace.
As always, an employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means a “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.
In determining whether a requested accommodation poses an undue hardship, an employer may consider whether current circumstances create "significant difficulty" in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be more difficult during the pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. The EEOC advises that if a particular accommodation poses an undue hardship, employers and employees should work together to identify potential alternatives.
In determining whether a requested accommodation poses a “significant expense” during a pandemic, undue hardship considerations that may come into play include the sudden loss of some or all of an employer's income stream, the amount of discretionary funds currently available 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). However, these considerations do not mean that an employer can reject any accommodation that costs money. An employer must instead weigh the cost of an accommodation against its current budget, while taking into account constraints created by this pandemic. Even in the current climate, there may be practical no-cost or low-cost accommodations.
The EEOC reminds us that employees designated by the CDC as “critical infrastructure workers” or “essential critical workers” are still covered by the ADA, the Rehabilitation Act of 1973, and any other equal employment opportunity laws. Employers receiving requests for reasonable accommodations from employees who fall into these categories of jobs must process the requests as they would for any other employee. The standard considerations apply in assessing an accommodation request by such an employee.

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

Employers should take steps to address possible harassment and discrimination against coworkers when the workplace re-opens, including reminding employees that it is unlawful to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. Harassment of Asian employees is expected to be a focus of workplace issues and potentially claims. 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 should also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

Return to Work

As government stay-at-home orders and other restrictions are modified, employers will need to determine 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. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. Per the EEOC, whether an employee poses a “direct threat” to him/herself or to others is to be determined based on the best available objective medical evidence, such as guidance from the CDC or other public health authorities. Employers may continue to take temperatures and ask questions about symptoms, or require self-reporting by all those entering the workplace. Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.
An employer may require employees to wear personal protective gear and observe infection control practices, such as hand washing and social distancing. However, where an employee with a disability requests a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII of the Civil Rights Act of 1964 (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative, if feasible and not an undue hardship.
Both employers and employees will benefit from flexibility in navigating these employment decisions in the current environment. As government restrictions continue to change rapidly and as a return to work may be on the horizon for some, employers should remain mindful of the need to proceed with caution in navigating the discrimination law aspects of their employment practices.

For more information about how these ordinances apply in specific situations, contact the author of this alert, or visit our COVID-19 Response Resource Center to find an attorney in your area.

Author:

Stephanie M. Steinberg, Associate

Editor:

Peter T. Shapiro, Partner

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