Screening and Accommodation Issues Related to Returning to Work
Over the last few weeks, the EEOC has been updating its guidance for employers on handling various COVID-19 issues in the workplace, including on the topics of health screenings and when reasonable accommodation is, and is not, needed. In some areas, the EEOC’s guidance continues to evolve, particularly on the issue of handling employees who have underlying medical conditions that make them high-risk for COVID-19 complications, but who do not have COVID-19 or COVID-19 symptoms. This article summarizes the EEOC’s latest guidance on these important return-to-work issues.
The EEOC has taken the position that temperature screening, symptom and exposure screening, and COVID-testing are all permissible tools for employers to consider when bringing employees back to work. What if an employee refuses to participate? According to a recorded webinar provided by the EEOC, the employee can be denied entry into the workplace if an employee refuses to answer screening questions and/or submit to temperature screening. The EEOC has not directly answered whether an employer may refuse entry to an employee who refuses an actual COVID-19 test (which is more invasive than a health screening questionnaire or a temperature screening).
On the issue of symptom and exposure screening, the EEOC states that employers may ask all employees who will be physically entering the workplace if they have COVID-19, or symptoms associated with COVID-19, or ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, cough, sore throat, fever, chills, and shortness of breath. Additional symptoms may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting. Employers may not ask employees who are teleworking these questions. Employers may also ask employees who will be physically entering the workplace whether they have been exposed to anyone with COVID-19 or its symptoms. Employers should not limit the question to whether the employee has been exposed to any “family members” with COVID-19 or COVID-19 symptoms because GINA generally restricts inquiries into the medical conditions of an employee’s family.
Employers who will conduct screening or testing generally should apply the same requirements to all employees entering the workplace, rather than singling out individual employees for screening. An exception may be if a specific employee is exhibiting symptoms, in which case an employer may inquire if the employee may have COVID-19 and/or if the employee has been tested. Employees with symptoms may be sent home.
All medical information obtained from an employee and documented must be maintained in a confidential medical file for the employee. Importantly, if an employer learns that an employee has Covid-19, the employer must protect the confidentiality of that information. It is permissible to ask the employee which coworkers with whom he/she has been in physical contact and then to notify those workers that they may have been exposed, but the employer generally should not identify the worker with COVID-19 to others.
The EEOC has not yet addressed the permissibility of COVID-19 antibody testing, whether this may be required of all employees, and whether an employee can be denied entry into the workplace without a test.
Is COVID-19 a Disability?
The EEOC states that “it is not yet clear” whether COVID-19 is or could be a disability. However, employers may prevent those with COVID-19 from entering the workplace because they would pose a direct threat to employee safety.
Employees Who Are 65 and Older
The EEOC states that employers may NOT exclude employees who are 65 and older from the workplace simply because they are in a higher risk group for serious complications from COVID-19. The EEOC guidance states: “The Age Discrimination in Employment Act prohibits employment discrimination against workers aged 40 and over. If the reason for an action is older age, over age 40, the law would not permit employers to bar older workers from the workplace, to require them to telework, or to place them on involuntary leave.”
Relatedly, the EEOC states that employers are not required to grant a request to telework by an employee who is 65 or older simply because the employee is in a high-risk group for COVID-19 complications. (Of course, the employer may voluntarily permit telework in this circumstance.)
Please note that the EEOC’s guidance on this issue may conflict with some state or local shelter-at-home orders, which direct older employees to shelter at home. Employers need to consider the applicability of these orders and not just ADA/Title VII considerations when making decisions concerning this issue. If a shelter-at-home order is in place that states that older individuals (defined varyingly as 60+, 65+, and 70+ depending on jurisdiction) should shelter at home, employers should accommodate telework for these individuals while the order remains in effect. If telework is not feasible for this employee, the employer needs to consider state and local guidance as well as EEOC guidance in determining whether to prohibit the employee from returning to work (e.g. where the employee wants to return to work even though in a high-risk age group). This poses age discrimination risk under EEOC guidance. Unfortunately, the California DFEH has not provided its own guidance on this issue for California employers.
Employees With Underlying Medical Conditions
What are employers’ obligations with respect to accommodating employees who have underlying medical conditions that place them at higher risk for serious COVID-19 complications according to CDC guidance? This is an issue that the EEOC continues to grapple with, having published and then retracted guidance on this issue just yesterday, with a statement that the guidance is being reviewed and will be published at a later date. For now, the EEOC states that individuals with underlying medical conditions rendering them high-risk may be entitled to reasonable accommodations under the ADA to prevent “direct threat to self.” Such an employee should request accommodation and the employer has a duty to engage in an interactive process with the employee to determine reasonable accommodations. The employer can request supporting medical documentation specifying that the employee has a disability that puts him/her at higher risk for severe complications from COVID-19 (remember that in CA, employers may not require specific identification/diagnosis of the underlying medical condition) and that, as such, an accommodation is needed. Reasonable accommodations may include telework, provision of additional personal protective equipment or enhanced protective measures (for physical presence in the workplace) such as moving the location of an employee’s workspace to allow greater social distancing or protection, and/or elimination of marginal job duties.
The EEOC guidance states that employers are not required to allow pregnant employees to telework or otherwise provide special accommodations for them due to COVID-19 because pregnancy itself is not a disability. However, if an employee has a pregnancy-related disability for which the employee needs accommodation, the employer should engage in the interactive process and determine whether reasonable accommodation is appropriate. Additionally, if the employer allows other employees to work from home as an unofficial accommodation, the employer should not treat pregnant employees differently because that may give rise to a pregnancy discrimination claim.
Employees Living With Someone Who Is in a High-Risk Category
The EEOC states that an employer is not required to provide reasonable accommodation to an employee who is living with someone who has a disability that makes the individual high risk for serious COVID-19 illness. The ADA only requires reasonable accommodation of an employee’s own disability, not those of a family member.
Although an employer is not required to accommodate employees in this situation, employers may wish to voluntarily do so (e.g. provide an unpaid leave of absence or allow telework for a limited period of time) in order to avoid risk of claims/lawsuits and the associated cost of defense.
Personal Protective Equipment Upon Return to Work
If an employer requires employees to wear personal protective equipment in the workplace (e.g. masks, gloves) and an employee reports that he/she has a disability that prevents the employee from wearing the required protective equipment, the employer may have a duty to reasonably accommodate the employee by providing different protective equipment (e.g. non-latex gloves) or allowing an exception from the requirement, possibly with the imposition of different protective measures for that employee.
What About Undue Hardship?
Under established disability accommodation law, employers have a duty to reasonably accommodate employees with disabilities, unless doing so would be an undue hardship for the employer. Undue hardship generally means “significant difficulty or expense.” The undue hardship exception remains the law even in the COVID-19 era. However, the EEOC acknowledges that accommodations that would not have posed an undue hardship pre-COVID may pose undue hardship now due to financial struggles faced by employers and other limitations on staffing.
In assessing whether a particular accommodation poses “significant difficulty,” an employer may consider whether current circumstances create "significant difficulty" in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.
In assessing whether a particular accommodation poses “significant expense,” the sudden loss of some or all of an employer's income stream because of this pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time - when considering other expenses - and whether there is an expected date that current restrictions on an employer's operations will be lifted (or new restrictions will be added or substituted). These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.