Labor & Employment Law Update

Back on March 18^th as we were entering the COVID-19 health crisis, we addressed EEOC guidance on the impact of the ADA on COVID-19 preventative measures.  Fast forward to today, as our collective focus shifts to talk of “re-opening the economy,” the EEOC has updated its guidance.  Uncertainty abounds as to whether it will be business as usual or a new normal.  Undoubtedly though, employers will need to be mindful to avoid ADA pitfalls as restrictions are lifted, furloughed workers return and/or as new hires are brought onboard. 

The EEOC’s updated guidance addresses the following areas (new and revised information in bold):

Disability-Related Inquiries and Medical Exams

• Our prior guidance regarding questioning employees about COVID-19 symptoms, measuring temperature, requiring employees with symptoms to stay at home and asking them to provide doctor’s notes is unchanged.
• Employers can still ask employees to disclose whether they are experiencing COVID-19 symptoms.  The list of symptoms has been expanded, and may continue to expand, as experts learn more (symptoms now include loss of smell/taste and gastrointestinal problems).
• As the burden on health care providers is lightened, it will become easier to require employees to provide doctors notes and fitness-for-duty documentation.  Of course, as we recommended before, employers should follow CDC and WHO guidelines on this issue.

Confidentiality of Medical Information

• Consistent with the ADA and our prior guidance, any medical information, including temperature checks, must be kept confidential and stored in employee’s medical files (kept separately from personnel files).
• Information may be disclosed to local public health agencies.
• Staffing agencies may disclose information of any affected individual to employers.

Hiring and Onboarding guidance

• When hiring, employers may continue to screen or conduct medical examinations following a conditional offer, bearing in mind that candidates may still be asymptomatic.
• Start dates may be delayed.
• Offers may be withdrawn if an individual is unable to start right away as a result of a COVID-19 diagnosis or symptoms.

Reasonable Accommodation

• Individuals might require accommodation because their disability makes them particularly vulnerable to COVID-19. This could give rise to new forms of accommodations. Examples given include one way aisles and plexiglass or other physical barriers to provide protection and/or ensure distancing.  
• Pandemic might exacerbate some disabilities such as anxiety, OCD and PTSD.
• The duty to provide reasonable accommodation can extend to any work environment.
• Temporary changes prompted by the pandemic (including work from home) can give rise to (or eliminate) the need for reasonable accommodation or alter the effectiveness of an accommodation provided previously.
• Employees can still be asked to substantiate disability and need for accommodation.
• As always, engage with employees to assess accommodation needs and undue hardship on a case by case basis, given the particular circumstances. 

Pandemic-Related Harassment

• Harassment based on an individual’s race or national origin, or other legally protected characteristic, must not be tolerated. Enough said.

Furloughs and Layoffs

• Reminder that special rules apply when severance or other benefits are offered to a group of employees in exchange for a release – a reference to the OWBPA requirements for group terminations. The law here has not changed.

Return to Work

• As stay-at-home orders or other restrictions are lifted, employers will still be able to take action pursuant to EEOC, CDC and/or state health officials’ guidance.
• Disability-related inquiries and medical exams will be appropriate if job-related and consistent with business necessity.
• As with any ADA analysis, employers will be able to exclude employees with medical conditions that pose a direct threat to the health or safety of others.
• Employers will need to review CDC guidelines with respect to returning employees, including those deemed “critical workers.” 
• Employers will need to work with returning employees about protective equipment requirements and infection control practices.
• Employers will need to engage in the interactive process with any employees seeking ADA reasonable accommodations regarding protective equipment, i.e. non-latex gloves, modified facemasks, or religious accommodations under Title VII (modified equipment due to religious garb).