As our nation prepares to cautiously re-open the economy in the wake of COVID-19, there are still many reasonable questions about what “business as usual” will look like for the near future. The interpretation of the Americans with Disabilities Act (ADA) moving forward is one area in which business owners and employees with disabilities and pre-existing conditions need more information on as this situation continues to unfold.
Last Friday, the EEOC updated their Q&A guidance regarding COVID-19 and the ADA. You can read the full text of the guidance here, but we wanted to provide a quick breakdown and explanation of the new guidance the EEOC has released.
Moving forward, we’ll explore:
- The expansion of COVID-19 symptoms you can discuss with employees
- Modifications to guidance regarding confidential medical information
- Specific guidance about providing reasonable accommodations during this time
- Reinforcement of the discriminatory status of pandemic-related harassment
- The EEOC’s reminder about discrimination claims due to furloughs & layoffs
- Guidance for transitioning employees back to work
Expansion of Symptoms
Although employers are generally discouraged from asking employees detailed questions about symptoms when they call out sick or request short-term medical leave, the EEOC has clearly established that it is acceptable to ask employees to disclose if they are experiencing specific COVID-19 symptoms.
The EEOC’s most recent guide clarifies that the following symptoms are associated with COVID-19 and that employers may ask about/discuss these with their employees:
- Loss of smell or taste
- Gastrointestinal problems
Additional symptoms may be added to this list in the coming weeks and months, as the virus becomes better understood.
Communicating Confidential Medical Information
Employers are still forbidden from revealing employees’ confidential medical information or comingling medical information with personnel records. However, given the current circumstances, EEOC has clarified that employers may share information related to COVID-19 among their employees with local public health agencies.
Furthermore, a temporary staffing agency may notify an employer to reveal if a contractor has been diagnosed with or exposed to COVID-19 in order for the employer to measure exposure within their workplace or among their team.
Providing Reasonable Accommodations Under the ADA
As we approach the re-opening of the economy, individuals who are especially vulnerable to COVID-19 may require reasonable accommodations for the foreseeable future. The EEOC went out of its way in the new guidance to establish that the current situation could easily exacerbate many mental health conditions like anxiety, depression, PTSD, etc., so employers in all industries must be open-minded about accommodations.
With that said, the EEOC also established that employees still require documentation from their doctors to receive accommodations, and employers can still choose not to provide those accommodations in the event they cause undue hardship.
The new guidance also explained that the current situation can create new need for accommodations, eliminate the need for prior accommodations, or alter the effectiveness of existing accommodations. That means it’s important to assess the state of ADA accommodations across your organization and reevaluate them to ensure they are still relevant and useful.
The EEOC explicitly established that discriminating during this time on the basis of race, national origin, etc. will not be tolerated. Stigmatizing or discriminating against employees, prospective employees, or customers because they are perceived as being part of a group or from a place highly impacted by COVID-19 is forbidden under the EEOC guidelines.
Regarding Discrimination Claims Due to Furloughs & Layoffs
The EEOC clarified that special rules apply when an employer is offering employees severance packages in exchange for a general release of all discrimination claims against the employer. The full text of that new guidance and the special rules can be found here.
Transitioning Back Toward Work
As traditional offices and workplaces begin to reopen, many employers are wondering what ADA-compliant steps they can take to protect their business and workforce.
The biggest question many employers have is, “Can we force employees who are sick or may be sick to stay away and use paid time/temporary disability benefits?” Based on clarifications from the EEOC, employers may exclude employees with a health condition that would cause a direct threat to health and safety – that includes COVID-19.
On the other hand, it’s crucial that employers do not do anything during this time that could be construed as discriminatory or unlawful disparate treatment based on protected characteristics (race, color, national original, religion, age, sex/gender, sexual orientation, or physical or mental disability).
Understanding exactly who poses a “direct threat” will likely be an evolving target in the coming months as doctors and scientists begin to understand COVID-19 better. The EEOC stresses that employers should regularly check the FDA and CDC for updated guidance with regard to how to manage their workforces and what best practices to employ to keep everybody safe and healthy.
The new guidance also establishes that employers may require employees to use personal protective equipment (PPE) upon returning to work and observe established infection control procedures, but modifications must still be provided as possible for employees with identified disabilities under the ADA (for example, clear masks or face shields that allow workers who are hard-of-hearing to read lips) unless those accommodations are infeasible or would cause undue hardship to the employer’s business.
The EEOC’s new ADA/COVID-19 guidance has clarified some aspects of the road back to work for employers and professionals across the U.S. As we return to some semblance of normalcy, it will be crucial to maintain vigilance about COVID-19 and lead in a thoughtful, compliant manner.
- The EEOC has expanded official COVID-19 symptoms employers can ask employees about, adding loss of taste or smell and gastrointestinal problems to the list
- Employers may communicate information related to employees with COVID-19 to local public health agencies
- Temp agencies may discuss exposures related to independent contractors with employers
- Employers need to be open-minded about accommodations for a variety of physical and mental health needs during this time
- Discrimination or harassment related to COVID-19 and any protected group unfairly associated with COVID-19 is strictly prohibited
- Special rules apply for severance packages releasing employers from discrimination claims during this time
- As we transition back to work, employers must balance keeping everybody safe and getting as much information as they can while still avoiding discrimination and respecting private medical information