The EEOC’s pre-recorded webinar posted on March 27, 2020, covered some of the most common questions submitted to it regarding the COVID-19 pandemic and its relation to U.S. anti-discrimination laws. Key takeaways from the webinar are highlighted below.
How can employers safeguard their workplaces from COVID-19?
The updated EEOC Pandemic Publication allows for employers to take employees’ temperatures as they come into the workplace. To further safeguard their workplaces against COVID-19, employers may also ask employees if they have COVID-19, if they’ve had COVID-19 symptoms, or if they’ve been tested for COVID-19. Employers can exclude employees from the workplace who have COVID-19 or its symptoms because they are a direct threat to the workplace. Employers cannot exclude teleworking employees from the workplace, however, because they do not pose a direct threat to the workplace if they are not in physical contact with other employees.
Can employers bar employees from the workplace who refuse to have their temperatures taken or answer COVID-19 related questions, such as whether they have COVID-19, have COVID-19 symptoms, or have been tested for COVID-19?
Yes, employers can bar employees who refuse to answer whether they have COVID-19, have COVID-19 symptoms, or have been tested for COVID-19. Employers can also bar employees from the workplace who refuse to have their temperature taken. It is, however, still advisable for employers to ask employees the reason for their refusal(s) to better address the situation and alleviate any potential concerns employees may have about sharing their medical information.
Can employers single out certain employees to ask COVID-19 questions, rather than questioning the entire workplace?
Yes, employers may single out employees to determine whether they have COVID-19, but only if employers have a reasonable belief based on objective evidence that the singled-out employees may have COVID-19. For example, employers can ask COVID-19 related questions solely to individuals who have shown COVID-19 symptoms.
Can employers ask employees physically coming into the workplace whether they have family members with COVID-19 or family members with COVID-19 symptoms?
No, the Genetic Information Nondiscrimination Act prevents employers from asking employees questions about their family members’ medical information. The better question from a public health standpoint, which is also legal to ask, is whether an employee has had contact with anyone whom the employee knows has been diagnosed with COVID-19 or who may have COVID-19 symptoms.
What is the proper course of action for a manager to take when he or she confirms that an employee has COVID-19 or COVID-19 symptoms without violating ADA confidentiality?
The question is what to report. Employers should limit who knows the identity of the individual based upon who absolutely needs to know the information. Employers can interview to find out who had contact with the employee, but still should not reveal the employee’s name to those individuals, just that a coworker they were recently in contact with has been diagnosed with COVID-19 or shown COVID-19 symptoms. The employer should protect the employee’s identity by limiting who knows the employee’s name to the greatest extent possible.
An employee notices another coworker reporting to the workplace has COVID-19 symptoms. Does ADA confidentiality prevent the employee from telling their supervisor about the coworker?
No. The supervisor, however, must still protect the employee’s identity by limiting who knows the employee’s name to the greatest extent possible as outlined above.
An employee is teleworking due to COVID-19 or COVID-19 symptoms. May the employer tell the employee’s coworkers that the employee is teleworking without telling them why?
Yes, and the same goes for individuals on leave due to COVID-19 or COVID-19 symptoms. Employers just cannot divulge the reason the employee is teleworking or on leave.
Can employers say more than “someone at this location has been experiencing COVID-19 symptoms” or “someone within your department has recently been diagnosed with COVID-19” when they’re concerned it may not give sufficient notice to all other employees of their potential exposure to COVID-19?
No, the ADA does not permit such broad disclosure of the medical condition of a specific employee, and the CDC specifically advises employers to maintain the confidentiality of employees with confirmed diagnoses of COVID-19.
How are managers and supervisors supposed to safeguard confidential medical information while teleworking?
Managers and supervisors must safeguard confidential medical information to the greatest extent possible while teleworking until they can properly store the information upon returning to the workplace.
Can employers notify the authorities if an employee is diagnosed with COVID-19?
Yes, the ADA permits employers to notify the authorities if an employee has COVID-19 because the employee is a direct threat to others because of the diagnosis.
Can employers exclude employees who are 65 or older from the workplace solely because they’re at higher risk of experiencing severe COVID-19 symptoms?
No, employers are not allowed to discriminate against such employees upon the basis of their age under the ADEA.
Do employers have to grant requests from older workers to telework solely because they’re at higher risk of experiencing severe COVID-19 symptoms?
No, but neither can employers treat older workers differently than other workers making similar requests who are also at higher risk of experiencing severe COVID-19 symptoms.
Can employers lay off or furlough pregnant workers who don’t have COVID-19 or its symptoms because they’re at higher risk of experiencing severe COVID-19 symptoms?
No. Title VII bars discrimination on the basis of sex, and discrimination due to pregnancy is considered discrimination on the basis of sex.
Do employers have to grant pregnant workers’ requests to telework because they’re at higher risk of experiencing severe COVID-19 symptoms?
No, but employers do have to treat pregnant employees the same as other employees who are at higher risk of experiencing severe COVID-19 symptoms.
May employers single out employees based on their national origin and exclude them from the workplace due to concerns about possible COVID-19 transmission? May employers tolerate hostile work environments based on employees’ national origins or religions because others link them to COVID-19 transmission?
No. Title VII prohibits all discrimination based on national origin and religion, regardless of whether others link them to the COVID-19 pandemic.
Is COVID-19 considered a disability under the ADA?
It is unclear whether COVID-19 is or could be a disability under the ADA at this time. However, employers can bar employees with confirmed diagnoses of COVID-19 from the workplace because they are a direct threat to others based on the most current guidance from the CDC and other public health authorities.
What are an employer’s obligations if an employee says he or she has a disability that puts him or her at a greater risk of experiencing severe COVID-19 symptoms and therefore asks for a reasonable accommodation?
This is a valid reasonable accommodation request that the employer should grant upon verifying that the employee has a disability and that the employee’s disability puts him or her at greater risk of experiencing severe COVID-19 symptoms. The employer may also evaluate whether granting the request will impose an undue hardship on the employer.
Additionally, employers verifying employee disabilities with healthcare providers should remember that due to the increased strain on the current healthcare system, disability verifications may take longer than usual. Employers may want to consider placing employees on temporary leave while awaiting verification of employee disability. Employers may also want to consider verifying employee disabilities through alternative methods, such as prescription records.
What are an employer’s obligations to provide a reasonable accommodation when an employee lives in the same household as someone at higher risk of experiencing severe COVID-19 symptoms due to a disability?
Reasonable accommodations under the ADA only apply to the disability of the employee making the request, so the employer has no obligation to grant the employee’s request in this circumstance. However, employers must still make sure that they do not treat such employees differently than other employees making the same, or similar, requests.
What practical considerations should employers and employees keep in mind about the ADA’s interactive process during the current COVID-19 state of emergency?
Some requests may require prompt consideration, such as requests from employees with disabilities at higher risk of experiencing severe COVID-19 symptoms. Employers should consider granting accommodations on a temporary basis. Additionally, employers and employees should try and be as flexible as possible. Employers may have to provide employees with temporary accommodations that may not be ideal while engaging in the interactive process during the COVID-19 state of emergency.
Do employers have to provide the same reasonable accommodations to teleworking employees with disabilities at higher risk of experiencing severe COVID-19 symptoms as employees physically present in the workplace?
No, the employer and such employees must engage in the interactive process and discover what would be a reasonable accommodation in the employee’s home or other location where the employee is teleworking.
After the COVID-19 state of emergency ends, do employers have to continue to allow employees to telework as a reasonable accommodation to every employee with a disability who wants to continue the arrangement?
No. Employers still must go through the interactive process to determine what a reasonable accommodation will be for those employees at that time. If employees do not have a disability requiring telework as a reasonable accommodation, the employer doesn’t have to grant the request. Additionally, employers must remember that they do not have to eliminate essential functions of positions as part of a reasonable accommodation. And, if employers eliminated essential functions of positions due to COVID-19, that does not change the essential functions of those positions upon the COVID-19 state of emergency ending.
If an employee requested telework as a reasonable accommodation before the COVID-19 state of emergency and it was denied due to concerns regarding the employee being able to perform the essential functions of the position while teleworking, does the employer have to grant the employee’s request to telework as a reasonable accommodation once the COVID-19 state of emergency is over?
If the employee demonstrated that he or she could perform the essential functions of his or her position while teleworking during the COVID-19 state of emergency, then the employer should take that into consideration as part of the interactive process in considering whether to grant the request once the state of emergency is over. That does not mean, however, that the employer must automatically grant the employee’s request without engaging in the full interactive process.
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