On March 27, 2020, the EEOC answered employers’ questions related to the intersection of COVID-19 with the Americans with Disabilities Act (ADA), the Genetic Information and Nondiscrimination Act (GINA), the Age Discrimination in Employment Act (ADEA), Title VII, the Pregnancy Discrimination Act (PDA) and the Rehabilitation Act. The entire question and answer session may be seen here: https://www.youtube.com/watch?v=i8bHOtOFfJU
The EEOC started and ended the webinar by stating that the laws enforced by the EEOC do not hinder employers from following the guidance issued by the CDC or state and local health authorities. However, the laws do still apply to employers and should be followed. The speakers also repeatedly cautioned that their answers were accurate as of the day the webinar was recorded, March 27, 2020. As more is learned about COVID-19 and as circumstances change, their answers may change.
In the webinar the Commission addressed topics such as disability-related inquiries and medical examinations, confidentiality of medical information, and requests for leave, telework and other accommodations. Some of the highlights are summarized below.
The Commission stated that during the COVID-19 crisis, employers may take the temperatures of employees entering the workplace. Employers may also ask employees if they have COVID-19 or COVID-19 symptoms, and if they have been tested for COVID-19. Employees with COVID-19 or its symptoms may be excluded from the workplace because their presence would pose a direct threat to the health and safety of others. Employers may also ban employees from the workplace if they refuse to answer the questions related to COVID-19 or to have their temperatures taken before entering the workplace.
Significantly, if an employer wishes to ask only a particular employee the COVID-19 related questions, the employer must have a reasonable belief based on objective evidence that this person might have the disease. For example, if the employer notices that an employee has a persistent hacking cough, it can ask the employee about the cough, whether the employee has been to a doctor and whether the employee knows if he or she has or might have COVID-19.
Information related to the fact that an employee has symptoms of COVID-19 or a diagnosis of COVID-19 is confidential medical information that is protected by the ADA. Managers and employees with knowledge of coworkers who have COVID-19 or the symptoms of COVID-19 should report this information to appropriate management officials so that management can take actions consistent with guidance from the CDC and other public health authorities.
Preferably before COVID-19 issues arise in the workplace, management should consider who in the organization needs access to information about employees with COVID-19 or its symptoms, and should limit the number of people who need to know. All employer officials designated as needing to know the name of an affected employee must be instructed that the information is confidential.
Once an employer learns of an employee with COVID-19, a designated representative of the employer may interview the employee to obtain a list of people with whom the employee may have had contact so the employer can notify those employees of the potential contact. The EEOC emphasized that this does not require disclosure of the employee’s name. For small employers, employees may figure out who the employee is, but employers are still in the position of not being able to confirm or reveal the identity.
One example given by the EEOC involved an employee teleworking due to COVID-related symptoms and whether this information could be shared with other workers. The EEOC responded that if staff need to know how to contact the employee, and that the employee is working even though he or she is not present in the workplace, the employer can disclose that the employee is teleworking, but should not disclose the reason. Similarly, if the employee is on leave because the employee has COVID-19 or symptoms associated with COVID-19, or any other medical condition, the employer cannot tell employees the reason for the leave.
The EEOC also addressed the issue of allowing telework or leave for those identified as potentially being at a higher risk of severe symptoms if diagnosed with COVID-19. For example, sending older workers home due to the higher risks related to COVID-19 would be a violation of the Age Discrimination in Employment Act. Since the ADEA does not have an accommodation provision, employers also have no obligation to allow older workers to telework or take leave based solely on their age.
Similarly, decisions about layoffs or furloughs should not be based on pregnancy. The Pregnancy Discrimination Act prohibits discrimination against women based on pregnancy and provides that pregnant women should be treated the same for all employment-related purposes. Therefore, a pregnant worker should not be denied an accommodation that the employer provides to other employees who are similar in their ability or inability to work. In addition, employers should be aware that pregnancy-related medical conditions can sometimes be ADA disabilities, which would trigger ADA accommodation rights. Pregnancy alone, however, is not an ADA disability.
The CDC has identified a number of medical conditions, including chronic lung disease and serious heart conditions, as potentially putting people at higher risk. Therefore, if an employee with one of these conditions makes a request for leave or another accommodation, it should be considered within the framework of the ADA and the interactive process. The employer is entitled to verify that the employee has a disability and that the accommodation is needed because the particular disability may put the individual at a higher risk. If the employee satisfies the requirements for being provided with an accommodation, the employer can then consider whether a reasonable accommodation would be an “undue burden” – whether the accommodation would pose a significant expense or significant difficulty under the current circumstances.
The Commission noted that due to the COVID-19 crisis, doctors may not be able to provide documentation promptly to support a request for an accommodation. The EEOC encouraged employers to consider alternatives, such as an insurance record or a prescription, as documentation evidencing an employee’s disability. The EEOC also suggested that employers grant temporary accommodations for those at higher risk from COVID-19 while waiting to receive supporting medical documentation. Employers and employees should be as creative and flexible as possible.
In closing, although the EEOC provided very specific guidance for employers during this unique time, the Commission emphasized that as circumstances change, its guidance may change. The Commission anticipates answering more questions received from employers, so periodically check the Hub for updates.