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EEOC Issues Updated ADA Guidance Amidst COVID-19 Pandemic

On April 9, 2020, the Equal Employment Opportunity Commission (EEOC) issued new guidance to help employers manage workplace issues related to the COVID-19 pandemic without running afoul of federal non-discrimination laws. The EEOC’s updated guidance focuses primarily on employers’ obligations under the Americans with Disabilities Act (ADA). The highlights are discussed below.

Employers May Ask About COVID-19 Symptoms

Employers may ask employees if they are experiencing any COVID-19 symptoms identified by the Centers for Disease Control and Prevention (CDC) and other public health authorities. This list of symptoms currently includes fever, cough, shortness of breath, chills, and sore throat. However, as the CDC and other public health authorities learn more about COVID-19 and expand the list of symptoms, employers may inquire about newly identified symptoms.

Employers Must Generally Keep COVID-19 Medical Information Confidential

Employers must generally treat an employee’s COVID-19 information as confidential and should keep such information in the existing medical file the employer maintains for the employee. Confidential COVID-19 information may include an employee’s statement that he/she has the disease or suspects he/she has it; the employer’s notes from questioning the employee about his/her symptoms; or any log of employee temperature checks. However, employers may disclose to public health agencies the names of any employees infected with COVID-19. Similarly, if a staffing company or contractor places an employee at a worksite and later learns the employee has COVID-19, the staffing company or contractor may disclose the employee’s name to the business where the employee was placed.

Employers Should Remain Flexible When Hiring or Onboarding Individuals at Higher Risk of COVID-19 Infection

The CDC has identified certain populations as particularly at risk of contracting COVID-19 (i.e., adults over age 65, people with serious underlying medical conditions, and possibly people who have disabilities or are pregnant). If an employer has extended a job offer to a person in one of these high-risk groups, the employer may not unilaterally postpone the person’s start date or withdraw the job offer simply because of the person’s high-risk status. Instead, if the person’s health concerns are an issue, the employer and the prospective employee should discuss teleworking options or a delayed start date. Note that the EEOC’s previous guidance remains in place with respect to prospective employees who must start immediately but who also have symptoms of COVID-19: the employer may unilaterally withdraw these job offers since they cannot work pursuant to current CDC guidelines.

Employers Should Consider Appropriate Reasonable Accommodations in Light of COVID-19

Employees with disabilities may request altered, or new, reasonable accommodations due to the COVID-19 pandemic. Employers must generally approach these requests as they would any other reasonable accommodation request. For employees who must report to the workplace to perform their duties, employers should consider reasonable, temporary accommodations to reduce these employees’ exposure to COVID-19, if appropriate (e.g., designation of one-way aisles, plexiglass or other physical barriers to reduce exposure, temporary job restructuring or transfers, changes to work schedules or shift assignments, etc.). If an employer has imposed mandatory teleworking, the employer may prioritize requests for reasonable accommodations needed while teleworking. However, if an employee requests an accommodation that will only be needed after mandatory teleworking ends, the employer should still consider this request and may make advance arrangements to implement the accommodation, if appropriate.

Employers Should Take Steps to Prevent Pandemic-Related Harassment

Employers should explicitly communicate to employees that fear related to the COVID-19 pandemic should not be misdirected at others because of a protected characteristic, such as race or national origin. The EEOC provides online resources to help employers prevent and address pandemic-related harassment.

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