On March 27, 2020, the Equal Employment Opportunity Commission (EEOC) posted a webinar to its website referencing valuable employer advice and tips to address the coronavirus (COVID-19) in the workplace while complying with Title VII and other federal antidiscrimination laws. Here are some key takeaways:
Understand the Scope of Permissible Inquiries and Examinations
• To have their temperature taken;
• If they have COVID-19 or related symptoms; or
• To stay home and not enter the workplace if diagnosed with COVID-19 or related symptoms.
An employer may only ask these questions of specific and select employees if there is a reasonable belief based on objective evidence that an individual has COVID-19 or is displaying symptoms.
If an employee refuses to comply, reassure the employee that:
• Steps are being taken to ensure workplace safety; and
• The Americans with Disabilities Act (ADA) prohibits broad disclosure of confidential medical and personal information.
However, an employer should avoid asking an employee who is teleworking and not physically interacting with co-workers such questions.
Additionally, do not ask employees physically coming to work if they have family members with COVID-19 or related symptoms because this may violate the Genetic Information Nondiscrimination Act’s (GINA’s) prohibition on medical questions about family members. Instead, ask the employee if they have had contact with anyone they know that has COVID-19 or related symptoms.
Keep Information Regarding COVID-19 Confidential
The fact that an employee is diagnosed with COVID-19 or related symptoms constitutes medical information, which must be kept confidential under the ADA and only reported to appropriate management team members so that they can take action consistent with CDC and public health guidance.
With respect to confidentiality obligations, keep in mind:
• Once aware of an employee’s diagnosis, notify co-workers (without disclosing the employee’s name) that the diagnosed employee indicates they had contact with them;
• Limit the number of individuals aware of a diagnosed employee’s identity;
• Whether an individual’s identity will need to be revealed and to whom depends on the specific workplace;
• An employee may inform a supervisor that a co-worker is displaying COVID-19 symptoms so the supervisor can take action;
• If an employee is teleworking based on COVID-19 or in self-quarantine, an employer may reveal that the employee is teleworking, but not the reason why; and
• Notify public health authorities if an employee has COVID-19 or related symptoms since this poses a direct threat and a significant risk of substantial harm to the employee and others.
Additionally, secure the confidentiality of medical records referencing COVID-19 by:
• Maintaining such information in accordance with the employer’s existing confidentiality protocol;
• Keeping it separate from the employee’s personnel file; and
• If teleworking renders existing confidentiality protocols unfeasible, make sure to properly safeguard such information by keeping it in a safe place where others cannot view or access it and encoding it to protect confidentiality.
Be Careful About Actions With Respect to Older Workers
The Age Discrimination in Employment Act (ADEA) prohibits discrimination against workers who are 40 and older. An employer should avoid taking the following actions based on age-related concerns with respect to COVID-19:
• Barring an older employee from the workplace;
• Placing them on telework; or
• Placing them on involuntary leave.
Although the ADEA does not have an accommodation provision, if an employer permits other comparable workers to telework or provides them with another reasonable accommodation, older workers should be provided with the same treatment.
Tread Carefully When It Comes to Pregnant Employees
Even though the CDC advises that pregnant women may be at a higher risk of severe illness when it comes to COVID-19 and should be closely monitored, Title VII and the Pregnancy Discrimination Act prohibit an employer from laying off or furloughing pregnant employees who do not have COVID-19 or related symptoms as this constitutes unlawful discrimination.
Remember that while a normal pregnancy itself is not a disability, some pregnancy-related conditions may be considered a disability and trigger ADA accommodation rights. If a pregnant employee requests to telework during the COVID-19 pandemic, an employer is only required to grant such request if it is providing the same accommodation to other individuals who are not pregnant, but who are similar in their ability or inability to work. State or local laws may provide enhanced protections.
Carefully Monitor National Origin Discrimination and Harassment
An employer should carefully monitor any discrimination, harassment or retaliation against individuals based on national origin or religion in violation of Title VII that may be linked to COVID-19. Now is a good time to remind employees about:
• The employer’s policies prohibiting such conduct;
• The employer’s complaint procedure; and
• The discipline that may be imposed.
At-Risk Individuals May Need Accommodations
While it is unclear whether COVID-19 is or could be a disability under the ADA, an employer should consider providing reasonable accommodations to employees with existing ADA disabilities putting them at greater risk of severe illness when it comes to COVID-19. Examples include employees with chronic lung disease or a serious heart condition.
When evaluating an employee’s request for a reasonable accommodation:
• Promptly engage in the interactive process with the employee to ascertain and verify the nature of the disability;
• Discuss why an accommodation is needed and what accommodation would work;
• Attempt to seek documentation from a health care provider to support an employee’s request;
• Remember that because of the COVID-19 pandemic, doctors may not be able to respond quickly to such requests;
• Consider alternative ways to verify the existence of disability (e.g., a prescription or health insurance records);
• Only consider providing employees with accommodations for their own disability that puts them at a higher risk, and not the disability of the employee’s household members;
• If unsure a disability exists or whether an accommodation is needed, consider providing an accommodation on temporary basis;
• Consider whether the request poses an undue hardship for the employer (i.e., significant expense or difficulty);
• Attempt to be as flexible and creative as possible; and
• Remember that while some requested accommodations may not be ideal, they may temporarily meet an employee’s needs.
Consider Specifics Regarding Teleworking as an Accommodation
The EEOC provides some pointed tips about teleworking as an accommodation since some employers may be requiring employees to telework or shutting down facilities during the COVID-19 pandemic.
An employer may not be required to provide a now teleworking employee with the same accommodations as it did in the workplace if it creates an undue hardship or is not feasible.
After public health measures are no longer necessary, an employer need not grant telework as a reasonable accommodation to every employee who requests it if:
• Another reasonable accommodation addresses the employee’s need; or
• Teleworking had temporarily excused an employee from performing one or more essential job functions during the COVID-19 pandemic for health and safety reasons.
An employer may restore an employee’s essential job functions and prior work arrangement and evaluate any requests for continued or new accommodations under the usual ADA framework.
In situations where the employer previously denied requests for telework, temporary telework experience during the COVID-19 pandemic could be relevant and serve as a trial period for demonstrating whether the employee could satisfactorily perform all of the essential job functions while working from home.