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EEOC Updates ADA COVID-19 Guidance

The Equal Employment Opportunity Commission (EEOC) has been keeping a running list of frequently asked questions () to provide guidance on complying with the Americans with Disabilities Act (ADA) during the COVID-19 public health crisis.  Ordinarily, requiring medical screenings or asking about health status is only permissible to the extent it’s related to someone’s job and consistent with business necessity. The EEOC has clarified that some inquiries/exams designed to prevent the spread of COVID-19 at work fall within these standards.

Two FAQs were updated and 18 new FAQs were added Tuesday, September 8, 2020.

The new FAQs clarify that:

• Employers may ask all employees physically entering the workplace whether they have been diagnosed with, have symptoms of, or have been tested for COVID-19.  However, targeting such inquiries to just one or some employees rather than all employees needs to be based on a reasonable, objective belief the employee might have the disease.  If someone that doesn’t solely telework reports feeling ill, you may ask questions about symptoms during this time.  Employers always have permission to ask an employee why he or she missed work.
• The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees about family members’ health.  However, employers can ask employees whether they have had exposure to anyone with symptoms or a COVID-19 diagnosis.
• While employers may bar physical entry for someone unwilling to participate in required screenings, employers are encouraged to ask employees their reasons for refusing, to explain the confidentiality and safety precautions this provides, and to make reasonable accommodations under the ADA when necessary.
• Questions about where an employee has traveled are allowed in order to comply with CDC or local quarantine guidelines, even if the travel was personal.
• Every effort should be made to limit the amount of people/managers that know the identity of those with symptoms or a diagnosis.  While contact tracing is vital, disclosing identities should not be needed in most cases, perhaps only being limited to a person that might administer FFCRA leaves, for example.
• Employees are allowed to report to management the identity and symptoms of a coworker whom they’ve observed with COVID-19 symptoms.
• An employer can communicate with those that need to know that an employee is teleworking or taking a leave of absence but cannot communicate the reason.
• Management must take extra care to safeguard confidentiality.  When working remotely, be cognizant of visible notes that should be hidden from view and avoid storing electronic records with a filename/location that makes it visible to unauthorized employees.
• Making reasonable accommodations under the ADA may look much different in a telework environment.  FAQ D.14 walks through considerations both employer and employee should keep in mind, as it may be a larger hardship to make such accommodations at the employee’s home for a temporary period of time.
• Likewise, when opening the workplace back up, those who had been teleworking cannot necessarily insist on being allowed to continue to telework as a reasonable accommodation under the ADA but can ask in advance about needing accommodations at the workplace.  The EEOC recognizes the temporary nature of some telework accommodations solely for public health reasons and that such a work environment may create a hardship for the employer on a longer term basis.  As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process.  Delays and temporary workarounds are expected during this time.
• Employers should not discriminate for some workers and against other workers based on age or other protected classes.

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.