By Sara J. Ackermann
September 10, 2020
The U.S. Equal Employment Opportunity Commission (EEOC) posted an update to “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” on September 8, 2020. The update modified the Q&As to create a user-friendly comprehensive guide addressing common questions about COVID-19 and federal equal employment opportunity laws for employers. A summary of the updates are below, but click here to review the full list.
Disability-Related Inquiries and Medical Exams:
- Employers may ask employees who will be physically entering the workplace if they have COVID-19, symptoms of COVID-19, or if they have been exposed. Employers may exclude those with COVID-19 from the workplace because their presence would be a direct threat to the health and safety of others. (See Question No. A.8.)
- Under the ADA, employers may ask a single employee questions related to COVID-19 so long as they have a reasonable belief based on objective evidence that the person might have the disease. (See Question No. A.9.)
- Employers may ask if the employee has had contact with anyone with COVID-19, but they may not ask employees questions related to their family members. The Genetic Information Nondiscrimination Act prohibits employers from asking employees medical questions about family members. (See Question No. A.10.)
- Employees who refuse to undergo screening efforts may be barred from physical presence in the workplace. If an employee requests a reasonable accommodation for the screening, the usual interactive process should be followed. (See Question No. A.11.)
- Employers may ask employees who work on-site and report feeling ill or call in sick questions about their symptoms. (See Question No. A.12.)
- Employers may ask employees why he or she has been absent from work. Such inquiry is not a disability-related inquiry. (See Question No. A.13.)
- Employers may inquire about employee travel. (See Question No. A.14.)
Confidentiality of Medical Information:
- It is not a violation of the ADA for a manager to report to an appropriate employer official that an employee has been diagnosed with COVID-19 or has symptoms. Employers should limit the number of people who know the name of the employee, but the ADA does not interfere with a designated representative interviewing the employee to contact trace within the workplace. (See Question No. B.5.)
- The ADA does not prevent an employee from communicating to his or her supervisor if a coworker has COVID-19 or symptoms of COVID-19. (See Question No. B.6.)
- Employers may tell the staff that an individual is teleworking or on leave but may not provide the reason why. (See Question No. B.7.)
- Even while teleworking, the ADA requires that medical information be kept confidential. An employer should follow existing confidentiality protocols if able to while working remotely. If not, the employer must safeguard the information to the greatest extent possible until it can be properly stored. (See Question No. B.8.)
- If an accommodation request is made while an employee is teleworking, the employer and employee should discuss the employee’s needs, and whether the same or a different accommodation could suffice in the home setting. Further, the analysis for undue hardship may be different. In light of teleworking, employers and employees both need to be creative and flexible about what can be done if an employee needs a reasonable accommodation for telework. (See Question No. D.14.)
- If an employer grants telework to employees for the purpose of slowing the spread of COVID-19, they do not automatically have to grant telework as a reasonable accommodation to every employee with a disability who continues to request this arrangement when the employer reopens. If there is no disability-related limitation that requires teleworking, then they do not have to provide telework as an accommodation. Even if there is a disability-related limitation, if it can be effectively addressed at the workplace then teleworking does not need to be granted. Further, if telework resulted in a sacrifice of essential job functions, employers do not have to continue to excuse the essential job functions under the ADA for disability accommodations. (See Question No. D.15.)
- Assuming all requirements for such a reasonable accommodation are satisfied, the temporary telework experience may be relevant in considering a renewed request to telework as a reasonable accommodation under the ADA. The period of telework during COVID-19 could serve as a trial period to show whether or not the employee could satisfactorily perform all essential functions while working remotely. But, as with all accommodation requests, the employer and employee should engage in an interactive dialogue. (See Question No. D.16)
- COVID-19 has created disruption to normal work routines and may have resulted in unexpected and increased requests for reasonable accommodations. Because of this, there may be an excusable delay in the interactive process for accommodations. (See Question D.17.)
- The current pandemic may constitute an “extenuating circumstance” that may justify exceeding the normal timeline that an agency has adopted in its internal reasonable accommodation procedures. (See Question No. D.18).
- If an employer chooses to offer flexible work arrangements for comparable workers, such as teleworking, it should make sure it is not treating older workers less favorably based on age. (See Question No. H.2.)
The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.
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