As the legal and regulatory schemes arising from COVID-19 continue to shift and evolve, it is crucial that employers stay up to date on the latest in compliance. To that end, certain agencies offer primers and fact sheets to help guide the way.
Just this month, for instance, the Equal Employment Opportunity Commission (“EEOC”) updated its online primer on COVID-19 and the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and more. These updates, which concern disability-related inquiries, medical exams, the confidentiality of medical information, reasonable accommodations for people with disabilities, planning for furloughs and layoffs, and treatment of older workers, are summarized below:
Can I Test My Employees for COVID-19?
An employer may administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically thereafter. This is consistent with guidelines set forth by the Centers for Disease Control and Prevention (“CDC”), and the ADA’s “business necessity” standard, pursuant to which testing is appropriate if used to determine whether an employee’s present condition poses a direct threat to others in the workplace.
What Can and Can’t I Ask My Employee with Respect to COVID-19?
Employers may ask all employees who will be physically entering the workplace (1) if they have COVID-19 or symptoms associated with COVID-19, and (2) whether they have been tested for COVID-19. In fact, employers in New York State are required to ask such questions of employees and visitors pursuant to an executive order issued by Governor Andrew Cuomo. With respect to employees working remotely, such questions are generally not permitted.
Under the ADA, it is alright to ask such questions of only one employee, as opposed to all employees, provided the employer has a reasonable belief, based on objective evidence, that such employee might have COVID-19. Such evidence might include, for instance, a display of symptoms. In addition, when determining whom to ask, the employer may follow the recommendations of the CDC or other public health authorities, as the ADA would not require otherwise.
It is also okay to ask an employee why he or she did not report to work. This question has always been permissible under the ADA, and COVID-19 has not changed that. Questions about travel are also permissible under the ADA, as they are not disability-related. In other words, if the CDC or public health officials recommend or mandate a quarantine after travel to certain locations, an employer may ask whether an employee has traveled to such locations.
An employer cannot ask whether its employee has family members with COVID-19, as such questions are prohibited by the Genetic Information Nondiscrimination Act (GINA). The compliant, and ultimately more useful, question is whether said employee has had contact with anyone diagnosed with the disease, or with symptoms of the disease.
What Should Be Done if It Is Suspected that an Employee Has COVID-19?
The ADA requires that an employer keep all medical information about employees confidential, even information about COVID-19. Accordingly, if an employee is suspected to have COVID-19, that suspicion should be kept as confidential as possible. In other words, while a designated representative of the employer may be notified so as to ensure compliance with guidelines set forth by the CDC and public health officials, every effort should be made to limit the number of people who know the name of the employee.
For instance, it is not an ADA violation for an employer to interview a sick or potentially sick employee to ascertain a list of people with whom that employee has been in contact. However, when notifying those on the list, the name of the sick or potentially sick employee must not be revealed. Coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity.
If an employee is undergoing quarantine and working remotely, the fact that the employee is under quarantine is confidential, whereas the fact that the employee is working remotely is not. In other words, if an employee is absent or on leave, the employer cannot disclose the reason for the absence or leave, but may disclose that the individual is absent or on leave.
In the event that a manager is working remotely, such manager must safeguard any medical information received regarding COVID in accordance with the ADA requirement that medical information be stored separately from regular personnel files. If a manager cannot comply fully with such requirement, the information must be safeguarded to the greatest extent possible.
How Do I Deal with Requests for Reasonable Accommodations Under the ADA During the Pandemic?
The pandemic has disrupted normal work routines and, in some instances, has caused an increase in requests for reasonable accommodations under the ADA. In light of this increase, employers may be delayed in addressing these requests, but employers should do so as soon as possible, and are encouraged to use interim solutions to enable employees to keep working. This is true also for federal agencies, which are required to include timelines in their procedures governing how quickly they process requests for reasonable accommodations. The pandemic may constitute an “extenuating circumstance” that justifies exceeding that timeline.
To get ahead of a potential increase in requests for accommodations, employers may invite employees with disabilities to request accommodations in advance of a reopening. If an advance request is received, the employer may begin the exchange of information known as the “interactive process,” by which an employer asks questions and/or requests documentation to determine whether an employee’s disability necessitates an accommodation.
As a practical matter, an employer may not be able to provide teleworking employees with the same ADA accommodations they would receive in the workplace. Where possible, an employer should provide interim accommodations to teleworking employees, provided such accommodations are necessary and do not pose an undue hardship, which means “significant difficulty or expense.”
The fact that employees with disabilities have been permitted to telework during the pandemic does not mean they are entitled to continue doing so as an ADA accommodation. If there is no disability-related limitation that requires teleworking, the employer does not have to provide telework as an accommodation. Moreover, the employer is entitled to understand whether there is such a disability-related limitation.
A similar standard applies to employees excused from one or more essential functions of their jobs during a COVID-related shutdown. Upon reopening, the employer is not obligated under the ADA to refrain from restoring all such essential duties. Requests for continued or new accommodations should be evaluated under the usual ADA rules.
For employers who previously refused to grant an accommodation because of concerns that an employee would not be able to perform essential functions remotely, pandemic-related telework may serve as a de facto trial period. If that employee wishes to continue teleworking, said trial period could inform whether the employer should reevaluate such request. The employer and employee should engage in a flexible, cooperative and interactive process if this issue does arise.
Do the Same Laws Against Discrimination Apply When I Am Planning Furloughs and Layoffs?
When planning for furloughs or layoffs, employers must keep in mind laws and regulations protecting against discrimination. Employers are prohibited from selecting a person for furlough or layoff selecting because of that individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity. For instance, if an employer is allowing certain people to telework, an older, comparable worker should not be given fewer flexibilities or otherwise treated less favorably based on age.
This information represents only a small portion of the wealth of pandemic-related guidance offered on the EEOC’s website. Though frequently updated, much of such information it is based on a webinar held on March 27, 2020, which was transcribed and is still available at www.eeoc.gov/coronavirus. Additionally, regular updates will be made available through Jaspan’s COVID-19 Resource Center, where employers can turn for guidance in facing difficult workforce issues and compliance matters during the COVID-19 pandemic.
If you have any questions, please contact Rachel Morgenstern at firstname.lastname@example.org or (516) 393-8291.