Updated EEOC COVID-19-Related Workplace Guidance
On April 17, 2020, the EEOC issued updates to its recently revised technical assistance guidance to address questions arising under the federal Equal Employment Opportunity laws related to the COVID-19 pandemic. In the guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” the EEOC continues to address common COVID-19-related workplace inquiries.
In its latest update, the EEOC addressed the following topics:
Reasonable Accommodation. As to employee requests for accommodations, the EEOC reiterated that employers may ask questions and request medical documentation to determine whether the employee has a “disability” as defined by the Americans with Disabilities Act (ADA) and to engage in the interactive process to determine whether the disability necessitates an accommodation and, if so, how the proposed accommodation will enable the employee to perform the essential functions of his or her position. The updated guidance also encourages employers to provide temporary accommodations with express end dates and to adjust the interactive process to address the fluidity of the COVID-19 situation and public health directives.
Pandemic-Related Discrimination and Harassment. The EEOC also encourages employers to remind employees that discrimination and harassment based on national origin, race or other protected characteristics is illegal. Employers are encouraged to remind supervisors and managers of their role to look out for, stop and report workplace discrimination and harassment.
Return to Work. Anticipating the modification and/or lifting of government stay-at-home orders, the updated guidance reiterates that the ADA permits employers to make disability-related inquiries and conduct medical exams, but cautions against unlawful disparate treatment in making decisions related to screening and exclusion. The updated guidance provides that employers may require employees returning to work to wear protective gear, e.g., masks and gloves, and to observe infection control practices such as regular handwashing and social distancing protocols. If an employee requests an accommodation due to a need for modified protective gear, the EEOC encourages employers to engage in the interactive process with the employee.
Individual facts and circumstances may vary and there may be state and local legislative developments that could impact the guidance provided by the EEOC. Consequently, employers should consult legal counsel regarding specific circumstances for individualized legal advice on COVID-19-related workplace issues.