EEOC Updates COVID Guidance, Highlights Accommodation Considerations

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EEOC Guidance Points

Requiring a note for employees returning after having COVID-19

When an employee returns to the workplace after being out with COVID-19, the ADA allows an employer to require confirmation from a qualified medical professional explaining that the individual is able to safely return.

If the request is considered a disability-related inquiry, it would be justified under the ADA standard requiring that such employee inquiries  be job-related and consistent with business necessity.

The EEOC advises that employers may wish to consider other ways to determine the safety of allowing an employee to return to work if doctors and other healthcare professionals are unable to provide such documentation either in a timely manner or at all.

This might include reliance on local clinics to provide a form, a stamp, or an e-mail to confirm that an individual is no longer infectious and is able to resume working.

Testing for COVID-19

Employers may administer COVID-19 viral tests.

if an employer implements screening protocols that include COVID-19 viral testing, the ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity.”  Employer use of a COVID-19 viral test to screen employees who are or will be in the workplace will meet the “business necessity” standard when it is consistent with guidance from Centers for Disease Control and Prevention, Food and Drug Administration, and state or local public health authorities that is current at the time of testing.

Possible considerations in making the “business necessity” assessment may include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.

Antibody testing

An employer may not require antibody testing before permitting employees to re-enter the workplace. An antibody test, as a medical examination under the ADA, must be job-related and consistent with business necessity. Based on CDC guidance, an antibody test may not show whether an employee has a current infection nor establish that an employee is immune to infection. Therefore, it cannot be used to determine whether an employee may enter a workplace.

Screening applicants for symptoms of COVID-19

An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.

If an employer screens everyone (i.e., applicants, employees, contractors, visitors) for COVID-19 before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19.

The screening must be limited to the same screening that everyone else undergoes; an employer that goes beyond that screening will have engaged in an illegal pre-offer disability-related inquiry or medical examination.

Withdrawing a job offer for someone who tests positive for coronavirus

An employer who follows current CDC guidance addressing the individual’s situation may withdraw the job offer if: 1) the job requires an immediate start date; 2) CDC guidance recommends the person not be in proximity to others; and 3) the job requires such proximity to others, whether at the workplace or elsewhere.

Given that for some individuals there may only be a short period of time required for isolation or quarantine, employers may be able to adjust a start date or permit telework.

Postponing the start date or withdrawing a job offer because a person is older, pregnant, or has a medical condition

An employer’s concern for an applicant’s well-being -- an intent to protect them from what it perceives as a risk of illness from COVID-19 -- does not excuse an action that is otherwise unlawful discrimination.

If an underlying medical condition is a disability, an employer must determine whether the individual’s disability poses a “direct threat” by starting work immediately and, if so, whether reasonable accommodation can be provided to sufficiently lessen or eliminate any risks without causing an undue hardship.

Delays during the interactive process

As the pandemic continues to evolve and new issues arise, it is possible that an employer may face new challenges that interfere with responding expeditiously to a request for accommodation.

To the extent that evolving circumstances created by the pandemic cause a justifiable delay in the interactive process–thereby delaying a decision on a request–employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.  

Federal agencies’ timelines in their reasonable accommodation procedures

Situations created by the current COVID-19 pandemic may constitute an “extenuating circumstance”—something beyond a federal agency’s control—that may justify exceeding the normal timeline that an agency has adopted in its internal reasonable accommodation procedures.

An agency must show specific pandemic-related circumstances that constitute an “extenuating circumstance.”  To the extent that there is an extenuating circumstance, agencies and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

Screening steps that are consistent with the ADA

The ADA permits employers to make disability-related inquiries and conduct medical exams to screen employees for COVID-19 when entering the workplace if such screening is “job-related and consistent with business necessity.”

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

Accommodations related to personal protective equipment requirements

Regardless of the reason an employer requires PPE (or other infection control measures), when an employee with a disability needs a  reasonable accommodation under the ADA to comply with an employer’s requirement to wear PPE (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or when an employee requires a religious accommodation under Title VII (such as modified or alternative equipment due to religious attire or grooming practices), the employer should discuss the request and provide  accommodation (either what is requested by the employee or an alternative that is effective in meeting the employee’s needs) if it does not cause an undue hardship on the operation of the employer's business under the ADA or Title VII.

Reasonable accommodation requests due to medical conditions

An employee must let the employer know that the employee needs a change for a reason related to a medical condition. Individuals may request accommodation orally or in writing.  While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, the employee may do so.

An employee should communicate that the employee has a medical condition necessitating a change to meet a medical need.  After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability—not all medical conditions meet the ADA’s definition of “disability”—and if there is a reasonable accommodation, barring undue hardship, that can be provided.

An employer knows that an employee has a medical condition, but the employee has not requested an accommodation

The ADA does not mandate that the employer take action in this situation if the employee has not requested reasonable accommodation. If the employer is concerned that the health of an employee with a disability may be jeopardized upon returning to the workplace, the ADA generally does not allow the employer to exclude the employee—or take any other adverse action—because the employee has a disability that CDC identifies as potentially placing the employee at higher risk for severe illness if the employee gets COVID-19.  Under the ADA, such an adverse action is not allowed unless the employee’s disability poses a “direct threat” to the employee’s health or safety that cannot be eliminated or reduced by reasonable accommodation.

“Direct threat”

The ADA direct threat requirement is a high standard.  As an affirmative defense for the employer, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to the employee’s own health or safety, or that of others in the workplace.

An employer analyzing a potential direct threat must consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.  Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and the employee’s particular job duties.  A determination of direct threat also would include whether the employee is up to date on vaccinations and the likelihood that an individual may be exposed to the virus at the worksite.  Measures that an employer may be taking in general to protect all workers, such as mandatory physical distancing, also would be relevant.

The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or sufficiently reduce the risk so that it would be safe for the employee to return to the workplace, while still permitting the employee to perform the essential functions of the job.

Preventing employees from working

An employer may only bar an employee from working based on the direct threat analysis if the facts support the conclusion that the employee poses a significant risk of substantial harm to the employee’s own health or safety that cannot be reduced or eliminated by reasonable accommodation.

Accommodations that may eliminate or reduce to an acceptable level a direct threat

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to, or require from, employees returning to its workplace. Reasonable accommodations also may include additional or enhanced protective measures, such as high efficiency particulate air filtration systems or units or other enhanced air filtration measures, erecting a barrier that provides separation between an employee with a disability and coworkers/the public, or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).

Other accommodations may include telework, modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting), or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more physical distancing).

Inviting employees to request flexible work arrangements

The ADA, the Rehabilitation Act, and Title VII of the Civil Rights Act do not prohibit employers from making information available in advance to all employees about whom to contact -- if they wish -- to request reasonable accommodation that they may need for a disability or a sincerely held religious belief, practice or observance upon return to the workplace.

Potential age discrimination

The Age Discrimination in Employment Act prohibits employment discrimination against individuals age 40 and older. The ADEA would prohibit a covered employer from excluding an individual involuntarily from the workplace based on being older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

While the ADEA does not include a right to reasonable accommodation for workers due to age, employers are free to provide flexibility to older workers.

Vaccination requirements

The federal EEO laws do not prevent an employer from requiring all employees to be  vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.

The ADA and Title VII require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.

Under the ADA, an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID-19 vaccination, if the standard is job-related and consistent with business necessity as applied to that employee. If a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others while performing their job.

As a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.

Medical information

Information about an employee’s COVID-19 vaccination is confidential medical information under the ADA. This information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

Incentives to employees for voluntarily receiving a vaccination from a health care provider that is not affiliated with the employer

The ADA does not limit the incentives (which includes both rewards and penalties) an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination, or to provide confirmation of vaccination, if the health care provider administering a COVID-19 vaccine is not the employer or its agent.

By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive.