The EEOC’s Webinar on the COVID-19 Pandemic and Antidiscrimination Laws—an Overview
On March 27, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) conducted a webinar to address emerging questions regarding the COVID-19 pandemic and the EEOC’s previously updated pandemic guidance. The EEOC has not yet published revised guidance or a questions-and-answers document, but it offered listeners useful information during its webinar. Ogletree Deakins’ attorneys who were in attendance on the webinar prepared the following takeaways based on notes from the presentation to help employers in this evolving area. Employers may listen to a recording of the webinar here.
Disability Related Inquiries and Medical Exams
Question 1. The EEOC has explained in the updated 2020 EEOC pandemic publication that at the present time the COVID-19 pandemic permits an employer to take the temperature of employees who are coming into the workplace. Is there anything else an employer could do at the current time to determine if employees physically coming into the workplace have COVID-19 or symptoms associated with the disease?
Answer 1. In addition to taking body temperature, employers may ask all employees who physically enter the workplace if they have COVID-19, symptoms associated with COVID-19, or if they have been tested for COVID-19. Symptoms include cough, sore throat, fever, chills, and shortness of breath. Employers may exclude employees with COVID-19 or associated symptoms from the workplace because their presence would pose a direct threat to health or safety. Note that employers may not ask these questions of employees teleworking as they are not physically interacting with co-workers.
Q2. What may an employer do under the Americans with Disabilities Act (ADA) if an employee refuses to permit the employer to take his or her temperature, or refuses to answer questions about whether he or she has COVID-19 or symptoms associated with COVID-19, or has been tested for COVID-19?
A2. Under the existing circumstances, the ADA allows employers to prohibit an employee’s physical presence in the workplace if the employee refuses to permit the employer to take his or her temperature, refuses to answer questions about whether he has COVID-19, symptoms associated with COVID-19, or has been tested for COVID-19. To gain cooperation, an employer may want to ask the reasons for the employee’s refusal.
Q3. May a manager ask only one employee, as opposed to asking all employees, questions designed to determine if he or she has COVID-19, or require that his or her temperature be taken?
A3. If an employer only wishes to ask a particular employee to answer such questions or have his or her temperature taken, the ADA requires that the employer have a reasonable belief based on objective evidence that this employee might have the disease. For example, if an employee has a persistent hacking cough (which is a symptom of COVID-19), the employer may ask about the cough, whether the employee has been to a doctor, or whether the employee knows if he or she might have COVID-19.
Q4. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?
A4. From a health perspective, the EEOC does not recommend that an employer narrow its question to contact with family members, as this question unnecessarily limits the extent of possible exposure for COVID-19. Instead, the better question from a public health and workforce management perspective is whether the employee has had contact with anyone who has been diagnosed, or has symptoms associated, with COVID-19. Note that the Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members.
Confidentiality of Medical Information
Q5. A manager learns and confirms that an employee has COVID-19 or symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do?
A5. The answer depends on the workplace. The employer should limit the number of people that learn the identity of the particular employee. A designated representative of the employer may interview the employee to obtain a list of people with whom the employee possibly had contact within the workplace, but this does not require disclosing the employee’s name. All employer officials designated as needing to know the employee’s name should be specifically instructed to maintain the confidentiality of the employee’s name. Employers may want to plan what supervisors should do if this scenario arises and determine in advance who should serve as the designated representative that will take the information from the supervisor and conduct the next steps.
Q6. An employee who must report to the workplace knows that a coworker who reports to the same workplace has symptoms associated with COVID-19. Does ADA confidentiality prevent the first employee from disclosing the coworker’s symptoms to a supervisor?
A6. ADA confidentiality does not prevent employees from communicating to their supervisors a coworker’s symptoms. After this information is reported to the supervisor, the supervisor should contact the appropriate officials within the company to report this information so that they can conduct the next steps.
Q7. An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why?
A7. Yes, the employer may tell the staff that this particular employee is teleworking without giving the reason for his teleworking in order for the staff to know how to contact the employee and to let the staff know that the employee is working even though he is not in the workplace. This also applies if the employee is on leave due to COVID-19. The employer can simply disclose that the employee is teleworking, but the employer cannot disclose the reason.
Q8. Employers may be concerned that telling employees that “someone at this location” or “someone on the 4th floor” has COVID-19 may not provide sufficient information to allow employees to know if they should take further steps to protect themselves or others. Therefore, can employers tell the workforce the name of the employee with COVID-19?
A8. No, the ADA does not permit broad disclosure of the medical condition of a specific employee. Additionally, the CDC does not recommend this broad disclosure. The CDC specifically advises employers to maintain the confidentiality of individuals with confirmed COVID-19.
Q9. Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely?
A9. The ADA requirement that medical information be kept confidential includes that medical information be stored separately from regular personnel files. If a manager or supervisor receives information involving COVID-19 or any other medical information while teleworking and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor must do so. However, if the normal procedure is not feasible, the manager or supervisor must still safeguard this information to the greatest extent possible until the supervisor can properly store it. This means that the paper or laptop that records the information may not be left out where others can see it. Additionally, managers may wish to use initials or another code to ensure confidentiality of the employee’s name.
Q10. Does the ADA permit employers to notify public health authorities if they learn an employee has COVID-19?
A10. Yes, the ADA permits employers to notify public health authorities if the employer learns that an employee has COVID-19. This permission is because COVID-19 poses a direct threat of substantial harm to individuals with the disease and those whom they come into contact. The ADA does not preempt state, county, and local laws designed to protect health from a direct threat like that posed by COVID-19 at this time.
Q11. May an employer exclude from the workplace an employee who is 65 years of age or older and who does not have COVID-19, or symptoms associated with the disease, solely because the CDC has identified this age group as being at higher risk of severe illness if they contact COVID-19?
A11. No. The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against workers 40 years and older. If the reason for an employer’s action is that the employee is 40 years or older, the law would not permit the employer to bar older employees from the workplace, place them on involuntary leave, or require them to telework. One way an employee could show that an action was based on age would be that the employer did not take similar actions against comparable workers under age 40.
Q12. Do the equal employment opportunity (EEO) laws require an employer to grant a request to telework from an employee who is 60 or older because the CDC says older people are more likely to experience severe symptoms if they get COVID-19?
A12. No, the ADEA does not itself have an accommodation provision like the ADA. However, if an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers differently based only their age.
Q13. The CDC guidance on individuals who are at higher risk for severe illness if they contract COVID-19 includes a recommendation to monitor women who are pregnant. Based on this CDC recommendation, may an employer decide to lay off or place on furlough a woman who is pregnant but does not have COVID-19, or symptoms associated with the disease?
A13. No. Pregnant employees are protected under Title VII of the Civil Rights Act of 1964. Under Title VII, employment actions based on pregnancy would be considered to be based on sex, so decisions about layoffs or furloughs should not be based on pregnancy.
Q14. Conversely, do the EEO laws require an employer to grant a request to telework from an employee who is pregnant because the CDC says there is a higher risk if she contacts COVID-19?
A14. Under Title VII, as amended by the Pregnancy Discrimination Act, pregnant women should be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work. Therefore, a pregnant worker should not be denied a needed adjustment that the employer provides to other employees for other reasons who are similar in their ability or inability to work. In addition, note that pregnancy-related medical conditions sometimes can be ADA disabilities, and if that is the case, ADA accommodation rights may be triggered. However, pregnancy itself is not an ADA disability.
National Origin- Related Concerns
Q15. May an employer single out employees based on national origin and exclude them from the workplace due to concerns about possible transmission of COVID-19? May an employer tolerate a hostile work environment based on an employee’s national origin or religion because others link it to transmission of COVID-19?
A15. No. Title VII prohibits all employment discrimination based on national origin. It does not matter if the treatment is linked to the COVID-19 pandemic. Employers may wish to remind workers about their policies on harassment and emphasize that prohibition on harassment includes harassment based on national origin and other protected characteristics.
Q16. Is COVID-19 a disability under the ADA?
A16. Medical experts are continuing to learn about COVID-19. Therefore, it is unclear at this time whether COVID-19 is or could be a disability under the ADA. Regardless of whether COVID-19 is a disability or could be a disability, an employer may bar an employee with the disease from entering work at this time because of the direct threat. Employers should continue to take action involving persons with COVID-19, or who may have COVID-19, based on the most current guidance available from the CDC and other public health authorities.
Requests for Telework, Leave, or Other Kinds of Job Modifications
Q17. What are an employer’s ADA obligations when an employee says that he or she has a disability that puts him at greater risk of severe illness if he or she contracts COVID-19, and therefore asks for a reasonable accommodation?
A17. The CDC has identified a number of medical conditions, including chronic lung disease and serious heart conditions as potentially putting individuals at higher risk. Therefore, this is clearly a request for a reasonable accommodation. Because the ADA would not require an accommodation when an employee does not have a disability, the employer may verify the employee has a disability, as well as verify that the accommodation is needed because a potential disability may put the individual at higher risk. There could also be situations in which accommodations are requested because a current disability is exacerbated by the current situation. Again, the employer can verify the existence of the disability and discuss why an accommodation is needed and the type of accommodation that would meet the employee’s health concerns. In either situation and as with any request for a reasonable accommodation, the employer may also consider whether a reasonable accommodation would pose an undue hardship.
With respect to an employer seeking documentation from a healthcare provider to support the employee’s request for an accommodation, the employer should remember that doctors will have difficulty responding quickly because of the current health crisis. Therefore, the employer may prefer to verify the employee’s condition through other means, such as a prescription or health insurance records that document the disability. While the employer is in the process of verifying the condition, the employer may want to provide accommodation on a temporary basis until the condition can be verified. This could be particularly critical where the request is for telework or leave from an employee whose disability puts him or her at higher risk from COVID-19.
Q18. What are an employer’s ADA obligations to provide a reasonable accommodation if an employee says that he or she lives in the same household as someone who, due to a disability, is at greater risk of severe illness if he or she contracts COVID-19?
Q18. An employee only has a right to a reasonable accommodation for his or her own disability. In the situation here, the employee does not have a disability—only a member of the household has a disability. However, the employer should consider if it is treating the employee differently than other employees with a similar need before it responds to the request.
Q19. What practical consideration should employers and employees keep in mind about the interactive process in the current COVID-19 situation?
A19. The interactive process refers to the process the employer and employee should use to fully discuss a request for an accommodation so that the employer obtains the necessary information to make an informed decision. In the current situation, some requests may need an employer’s prompt attention, such as those employees who have disabilities putting them at higher risk. Employers may provide accommodations on a temporary basis. For example, the employer may provide a particular accommodation for a couple of weeks while discussing the request more fully or while waiting to receive medical information. Given the current circumstances, employers and employees should try to be as flexible and creative as possible. There may be accommodations that are not ideal but will meet an employee’s needs at least on a short-term basis.
For federal agencies, the current COVID-19 crisis constitutes an extenuating circumstance that could justify modifying the normal timelines they must follow in processing requests and providing reasonable accommodations.
Q20. When an employer requests that some or all of its employees telework because of COVID-19, or government officials require employers to shut down its facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodation it provides to this individual in the workplace?
A20. If such a request is made, the employer and employee should discuss what the employee needs and why and whether the same or different accommodation could suffice in the home setting (e.g., the employee may already have things in his home to enable him to do his job). Also, undue hardship considerations might be different for the employee teleworking as opposed to the employee who is present in the workplace. As a practical matter, employers and employees should both be creative and flexible where the employee needs an accommodation for telework at home. If possible, providing interim accommodations might be appropriate while the employer is waiting for additional information.
Q21. Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. After such public health measures are no longer necessary, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who wishes to continue this arrangement?
A21. No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer is not required to provide telework as an accommodation. Or if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative over telework.
To the extent the employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then the employer is not required to grant a request to continue to telework as a reasonable accommodation after the COVID-19 crisis has ended if that request requires continuing to excuse the employee from performing an essential function. This is because the ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability. The fact that an employer temporally excused performance of one or more essential functions of a position during the COVID-19 crisis to enable the employee to telework for the purpose of protecting the safety of the employee and workforce or otherwise to choose to permit telework does not mean the employer has permanently changed a job’s essential functions or that telework is a feasible accommodation or that telework does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of the employee’s essential duties after the immediate crisis has passed, or at such time as it so chooses, to restore the prior work arrangement and then evaluate any request for continued or new accommodation under the ADA rules.
Q22. Assume that prior to the emergence of COVID-19, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews his or her reasonable accommodation request for telework. Can the employer again refuse the request?
A22. Assuming all requirements for reasonable accommodation are satisfied, the temporary telework experience could be relevant to consider the renewed request. The period for providing telework for the COVID-19 pandemic could serve as a trial period to show whether this employee with a disability could satisfactorily perform the essential functions while working remotely. The employee and employer should engage in the flexible cooperative process if this issue arises.
Additional Sources Mentioned in the Webinar
The EEOC’s 2009 Pandemic Preparedness in the Workplace and the Americans with Disabilities Act was updated on March 21, 2020, to include COVID-19 examples and information.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates