How to Comply With EEOC Return-to-Work Guidance During the COVID-19 Pandemic
Author: XpertHR Editorial Team
With workplaces starting to reopen and employees returning to work, an employer must remember to comply with federal laws (as well as state and local laws) intended to prohibit discrimination, harassment and retaliation based on protected class status, including Title VII of the Civil Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA).
To assist employers, the Equal Employment Opportunity Commission (EEOC) has released the publication What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws and updated its publication Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Additionally, the EEOC hosted a webinar providing answers to employers' Frequently Asked Questions. This EEOC guidance clarifies employment protections as applied to COVID-19.
This How To discusses the steps an employer should take to comply with EEOC guidance when bringing employees back to work during the COVID-19 pandemic.
Step 1: Avoid Discriminatory Decision-Making When Bringing Employees Back from Furloughs and Layoffs
In bringing employees to work from furloughs or layoffs, an employer must ensure its decision-making process is based on legitimate nondiscriminatory factors (e.g., employee performance, seniority or specific business needs) and not influenced by discriminatory considerations such as age, race, sex or disability. However, keep in mind that vulnerable individuals (e.g., employees with preexisting health conditions, immunocompromised employees, employees 65 or older, pregnant and breastfeeding employees) may be entitled to workplace accommodations under federal, state or local laws and regulations.
If an employer chooses not to rehire an employee or permit them to return to work, it must have a legitimate and nondiscriminatory reason for doing so (i.e., the employer's operational needs, changed business circumstances, well-documented past performance issues). It is critical to document the factors used to make such a decision as this may protect and shield the employer from any future discrimination claims.
Additionally, an employer should make sure that in determining who to bring back to work, it does not base such decisions on an employee's apparent higher risk of severe illness if they contract COVID-19. The EEOC makes clear that it is unlawful to treat older employees and pregnant women differently because of COVID-19 risks. While an employer may postpone such an employee's return to work or offer them the option of telecommuting, it cannot refuse to rehire them and bring them back to the workplace if they wish to return.
Step 2: Follow Guidelines if Conducting Medical Inquiries, Screenings and Testing
Although an employer is generally restricted under the ADA with respect to employee medical inquires, screening and testing, an employer may conduct COVID-19-related medical screenings and make inquiries as employees reenter the workplace because the EEOC has recognized that individuals who have COVID-19 pose a direct threat to workplace health and safety. Under the ADA, a direct threat is a situation presenting a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by a reasonable accommodation. Thus, EEOC guidance provides that this direct threat exception applies during the COVID-19 pandemic since an employee may pose a direct threat of harm to others by spreading the virus to others and an employer has an obligation to protect the health and safety of its employees and the public.
As such, an employer may:
- Ask employees if they have contracted COVID-19;
- Ask employees if they have any symptoms related to COVID-19 (i.e., fever, cough, loss of taste and smell, gastrointestinal problems such as nausea, diarrhea and vomiting);
- Ask employees whether they have interacted with anyone that has COVID-19 or related symptoms (do not limit this inquiry to family members as this may violate the Genetic Information Nondiscrimination Act and would limit the information obtained about an employee's potential exposure to COVID-19);
- Take employee temperatures at the start of the day or shift and maintain a log of results;
- Administer COVID-19 tests before employees enter the workplace to determine if they are actively infected with the virus;
- Send an employee home from work if they exhibit COVID-19 symptoms, refuse to answer any disability-related inquiries (such as above), refuse to cooperate with temperature screening measures, refuse to answer questions about whether they have COVID-19 and/or have been tested for COVID-19;
- Require employees who have had COVID-19 to provide a doctor's note certifying fitness for duty or another document certifying that the employee does not have COVID-19 after an employee returns to work.
However, an employer may not require employees to undergo antibody testing before allowing them to return to the workplace. Pursuant to EEOC guidance an antibody test should not be used when making decisions about returning workers because the testing does not meet the ADA's "job related and consistent with business necessity standard for medical examinations or inquiries of current employees."
In administering COVID-testing, an employer should:
- Consider testing all employees, or employees within a specific group or department based on legitimate business concerns;
- Make sure the tests are accurate and reliable by reviewing guidance from the Food and Drug Administration (FDA), the Centers for Disease Control (CDC) and other public health authorities, and then periodically checking for updates;
- Ensure that tests are administered in a consistent and nondiscriminatory manner;
- Be prepared to handle alternative methods of screening (e.g. requests for an accommodation) based on the individual's disability or religion;
- Seek the advice of public health authorities or medical professionals to interpret test results;
- Consider the incidence of false-positives or false-negatives associated with a particular test; and
- Remember that accurate testing only reveals if the virus is currently present, and that a negative test does not mean the employee will not acquire the virus later.
In administering any temperature screening be sure to:
- Test all employees consistently across the board without regard to protected class status, unless an employer has a reasonable belief based on objective evidence that a particular employee may have COVID-19;
- Notify employees regarding temperature checking procedures;
- Permit employees to self-certify, if possible;
- Have the test conducted by a qualified medical professional if possible or an employee trained on the proper procedures;
- Conduct the temperature screening in a private area away from other employees and preferably before the shift or workday begins;
- Make sure that the individual conducting the testing takes the appropriate precautions by implementing the proper social distancing procedures and using personal protective equipment (PPE); and
- Document the results of the temperature check and keep all information confidential.
Additionally, note that that certain states and localities require or recommend COVID-19 testing and temperature taking for all employees or employees in certain positions or departments. Further, certain industries (e.g., health care, food processing) may have additional screening requirements.
Step 3: Keep Medical Information Confidential
The ADA requires an employer to keep medical information in a separate file from the employee's personnel file. Any information provided to an employer by an employee that relates to COVID-19 must kept confidential to comply with the ADA. This includes:
- A log of employee results of daily temperature checks;
- COVID-19 test results; and
- Conversations with employees regarding COVID-19 symptoms.
Even if a manager or supervisor is teleworking, they should follow an employer's existing confidentiality protocols while working remotely if they are able to do so. If it is not feasible to follow those protocols, they are still obligated to safeguard this information to the greatest extent possible until the supervisor can properly store it.
An employer should limit access to this information to individuals who have a need to know for legitimate business purposes. However, remember that an employer may disclose the identity of an employee with COVID-19 to a public health agency. Additionally, an employer may disclose to coworkers that an individual that they work with has contracted COVID-19 (without disclosing the individual's identity) so coworkers can take the proper precautions.
Employers can use a generic description of the individual such as someone at this location or someone on the fourth floor has COVID-19. For small employers, co-workers might be able to figure out who the employee is, however employers in that situation are still prohibited from confirming or revealing the employee's identity. Further, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers should plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and what the next steps should be.
However, the ADA confidentiality rules do not prevent an employee from disclosing a co-worker's symptoms to a supervisor. Upon learning this information, the supervisor should contact appropriate management officials to report this information and discuss next steps.
Step 4: Consider Requests for Reasonable Accommodations Based on Disabilities
An employer may be required under the ADA to provide a reasonable accommodation to an employee with a preexisting disability or condition that puts them at higher risk for severe illness from COVID-19 as identified by the CDC, such as:
- Chronic lung disease or moderate to severe asthma;
- Serious heart conditions;
- Immunocompromised individuals (cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications);
- Severe obesity (body mass index (BMI) of 40 or higher);
- Chronic kidney disease undergoing dialysis; and
- Liver disease.
The reasoning behind this is that an accommodation may reduce possible exposure to others in the workplace or while commuting to work.
Reasonable accommodations may include:
- Additional or enhanced protective clothing and accessories such as gowns, masks, gloves or other gear beyond what the employer may generally provide to employees returning to its workplace;
- Changes to the work environment such as plexiglass, tables or other barriers to place distance between an employee with a disability and coworkers/the public;
- Increasing the space between an employee with a disability and others;
- Eliminating, substituting or temporary job restructuring of particular marginal functions and job duties;
- Temporary transfer to a different position;
- Modifying a work schedule or shift assignment if doing so decreases contact with coworkers and/or the public when on duty or commuting; or
- Moving the location of where an employee performs work.
If an employee requests an accommodation, the employer should engage in the interactive process and explore possible accommodations.
The employer should ask the employee:
- How the employee's disability creates a limitation;
- How the requested accommodation will effectively address the limitation;
- Whether another form of accommodation may effectively address the issue; and
- How a proposed accommodation will enable the employee to continue performing the essential functions and job duties of their position.
In response to a request, an employer may also seek medical documentation to help determine if the employee has a disability and if there is a reasonable accommodation, absent undue hardship, that can be provided. If medical records are not easily available, consider additional ways to verify the existence of a disability such as health insurance records or prescriptions.
Remember to document each step of the interactive process in order to create a record and guard against any possible failure-to-accommodate claims.
Also, understand that an employer may not be required to provide an accommodation if doing so would create an undue hardship. An employer must assess each accommodation request based on the facts and circumstances as well as the particular job and workplace. While it was previously more difficult for an employer to establish that financial impact created an undue hardship, the EEOC has acknowledged that in light of the COVID-19 pandemic, the following may be relevant considerations:
- The employer's loss of income in view of the pandemic;
- The amount of discretionary funds available at this time when considering the employer's other expenses; and
- The expected date that current restrictions on an employer's operations will be lifted or new restrictions added or substituted.
Be sure to weigh these costs carefully and explore all potential alternatives that would permit an employee to return to work. For example, it may be significantly more difficult during this pandemic to conduct a needs assessment or to acquire and provide certain items, particularly for employees who may be teleworking. It may also be significantly more difficult to provide employees with temporary assignments, to remove marginal functions or to hire temporary workers for specialized positions. In light of these factors, determine whether there are any no- cost or low-cost alternative accommodations available.
Remember that an employer does not need to grant an employee's requested accommodation, but only one that permits the employee to do their job. It is important to work together with the employee to find alternatives. If time is an issue, consider temporary or interim accommodations.
Step 5: Assess if an Employee's Disability Poses a Direct Threat to Their Own Health
The ADA does not permit an employer to exclude an employee from the workplace or take other adverse action (i.e., termination, demotion) solely because the employee has a disability that the CDC identifies as placing them at a higher risk for severe illness if they contract COVID-19. However, an employer may take certain actions if the employee's disability poses a direct threat or a significant risk of substantial harm to their own health that cannot be eliminated or reduced by a reasonable accommodation.
This determination must be made on a case-by-case basis considering and carefully documenting:
- The employee's particular disability (not the disability in general) in light of the most current medical knowledge or best available objective evidence;
- 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.
An employer also may take into account:
- The severity of the pandemic in a particular area;
- The employee's own health and management of the employee's disability;
- The employee's particular job duties;
- The likelihood that the employee will be exposed to the virus at the worksite; and
- The ability of the employer to take measures to protect all workers, such as mandatory social distancing.
If an employer concludes that an employee's disability poses a direct threat, it must engage in the interactive process with the employee and consider whether there are any reasonable accommodations that would either eliminate or reduce the risk so that the employee may safely return to work and perform their essential job functions.
If returning safely to work is not possible given the circumstances, consider accommodations that would permit the employee to continue work such as:
- Leave; or
- Reassignment to a different job in a place where it may be safer for the employee to work or a job that permits telework;
An employer may only exclude an employee from the workplace if the employer concludes that the employee's disability poses a direct threat to their health that cannot be eliminated or reduced by any reasonable accommodation.
Step 6: Consider a Plan for Flexible Work Arrangements in Advance of Employees Returning to the Workplace
Before an employer brings employees back to the workplace, an employer can invite employees to request flexible work arrangements in advance of their return. According to the EEOC, one way this can be accomplished is by notifying employees in advance about who to contact if they need to request an accommodation for a disability for when they return to the workplace, even if no date has been announced for their return. This notification can include all the medical conditions identified by the CDC that may place people at higher risk of serious illness if they contract COVID-19, instructions on who to contact, and an explanation that the employer will consider requests from employees who have these or other medical conditions on a case-by-case basis. Once an employer receives a request it must begin the interactive process.
An employer can also send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should clearly identify any differences in who the employee should contact depending on the request (e.g., a request based on a disability versus a childcare responsibilities request).
Individuals who have the responsibility to receive these accommodation requests must be trained to know how to handle them and to recognize the laws that may apply depending on the basis of the request (e.g., disability, religion, pregnancy).
Further, employers should ensure that if it provides a flexible work arrangement, such as teleworking or modified schedules to employees with school-age children due to school closures or distance learning during the pandemic, that it does not treat employees differently based on sex or other EEO-protected characteristics.
In addition, an employer is not obligated under the ADA to accommodate an employee who does not have a disability, but who is seeking an accommodation (e.g. teleworking) based on the disability-related needs of a family member or other person with whom they are associated in order to protect them from potential exposure to COVID-19. However, an employer may by its own choice provide a flexible work arrangement.
Step 7: Monitor COVID-19-Related Discrimination, Harassment and Retaliation
An employer must be aware of, monitor and prevent any discrimination, harassment or retaliation based on national origin, race or disability that may be related to COVID-19 concerns. Now is a good time to remind employees of the federal, state and local laws prohibiting discriminatory, harassing or retaliatory conduct based on protected class status and make sure that supervisors and managers are on high alert for such conduct. Also advise employees to report any acts of discrimination, harassment and retaliation, including acts that may take place through electronic communication tools (e.g. email), and remind them that the employer takes this conduct seriously and will follow up with an investigation and the appropriate interim or disciplinary measures, if necessary.
Step 8: Consider Reasonable Accommodation Issues with Respect to Personal Protective Gear
In order to reduce the spread of the virus that causes COVID-19 in the workplace, an employer may require an employee to wear personal protective gear such as a mask or face covering and gloves.
In doing so, an employer may face a request for a reasonable accommodation based on disability and/or religion and may need to provide modified or alternative equipment such as:
- Non-latex gloves (for employees with allergies);
- Modified face masks (to accommodate religious needs and those who are hard of hearing);
- Gowns designed for individuals who use wheelchairs; and
- Modified equipment (to accommodate religious dress).
However, an employer will only be required to provide a reasonable accommodation if doing so would not create an undue hardship. Remember that religious accommodation requests under Title VII are considered under a different and lower standard than ADA accommodation requests. An employer is not obligated to provide a religious accommodation that results in more than a de minimis burden, either economic or non-economic. This means that an employer does not need to provide an accommodation if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees or requires other employees to do more than their share of potentially hazardous or burdensome work.
On the other hand, undue hardship under the ADA means a significant difficulty or expense. In assessing undue hardship under the ADA, an employer may consider:
- The nature and cost of the accommodation needed;
- The employer's overall financial resources;
- The number of employees;
- The effect on expenses and resources;
- The impact of the accommodation upon the facility's operations and other employees; and
- The employer's operations and the composition, structure and functions of the employer's workforce.
In addition to wearing personal protective gear, an employer should also urge employees to perform other infection control practices such as:
- Using sanitizer; and
- Practicing social distancing.