EEOC Updated 15 Items In Its Covid-19 Technical Assistance Guidance, Adding A New Standard For Employers Which Test Employees For the Virus

On Tuesday, the EEOC once again updated its COVID-19 technical assistance Guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” adding updates for 15 items. While the Guidance does not have the force and effect of law, it does represent the Commission’s interpretation of the statutes it enforces. The Commission has updated the Guidance on several occasions since first issuing it at the start of the pandemic in March 2020. In fact, a proud point for the Trump EEOC, which Janet Dhillon then chaired, was that it very quickly issued its first COVID-19 Guidance at a time employment lawyers throughout the country were confused and uncertain about the law applicable to what quickly became a new workplace practice area involving the COVID-19 virus. At the time, the Commission’s definitive and clear Guidance felt to many employment lawyers like a life-preserver thrown to them while they otherwise wallowed in rough seas.

The most recent update includes three items in Sections A (Disability-Related Inquiries and Medical Exams) – notably adding a new standard (Answer 6) for employers which screen/test employees for COVID-19. The update also covers three items in C (Hiring and Onboarding), two items in Section D (Disability and Reasonable Accommodation), six items in Section G (Return to the Workplace), and one item in Section H (Age). 

Click on our full Blog, immediately below, for the questions (and “short answers” where applicable) addressed in this update. Please note the full answers online contain numerous explanations and examples.

Some questions required a detailed, extensive response. Please see the publication for the full answers. Our full Blog follows.

A. Disability-Related Inquiries and Medical Exams

A.5. When an employee returns to the workplace after being out with COVID-19, does the ADA allow employers to require a note from a qualified medical professional explaining that it is safe for the employee to return (i.e., no risk of transmission) and that the employee is able to perform the job duties?

• Short answer: Yes. Alternatively, employers may follow CDC guidance to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional.

A.6. Under the ADA, may an employer, as a mandatory screening measure, administer a COVID-19 viral test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace?

• Short answer: Yes if the employer can show it is job-related and consistent with business necessity.

The EEOC explained that its assessment at the outset of the pandemic was that the ADA standard for conducting medical examinations was, at that time, always met for employers to conduct worksite COVID-19 viral screening testing. With the July 12, 2022, revision, the EEOC clarified that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19. In the full response to A.6., the agency offers employers possible factors to consider in making this assessment, including community transmission levels and types of contacts between employees and others in the workplace. This change is not meant to suggest that such testing is or is not warranted; rather, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA, the Commission advised. In moving away from a clear “line-in-the-sand-rule” on employer testing, legal risk now arises and employers are going to need an ADA-qualified lawyer at their side to help them determine whether and for how long going forward to test. Employers which test employees for COVID-19 are best advised to obtain a written opinion from their lawyer to help mitigate damages should a jury second-guess that decision to continue testing.

A.7. Under the ADA, may an employer require antibody testing before permitting employees to re-enter the workplace? 

• Short answer: No.

C. Hiring and Onboarding

C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? 

Yes. 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. This ADA rule applies whether or not the applicant has a disability.

In addition, 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 EEOC advises that it believes that screening must limited to the same screening that everyone else undergoes and that an employer that goes beyond that screening will have engaged in an illegal pre-offer disability-related inquiry and/or medical examination.

C.4. May an employer withdraw a job offer when it needs an applicant to start working immediately, whether at the worksite or in the physical presence of others outside of the worksite, because the individual has tested positive for the virus that causes COVID-19, has symptoms of COVID-19, or has been exposed recently to someone with COVID-19? 

An employer should consult and follow current CDC guidance that explains when and how it would be safe for an individual who currently has COVID-19, symptoms of COVID-19, or has been exposed recently to someone with COVID-19, to end isolation or quarantine and thus safely enter a workplace or otherwise work in the physical presence of others. An employer which 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 (if job duties can be performed remotely).

C.5. May an employer postpone the start date or withdraw a job offer because of the employer’s concern that the individual is older, pregnant, or has an underlying medical condition that puts the individual at increased risk from COVID-19? 

• Short answer: No.

D. Disability and Reasonable Accommodation

D.17. Might the pandemic result in excusable delays during the interactive process? 

Yes. Some of the issues initially created by the pandemic that delayed engaging in an interactive process and/or providing reasonable accommodation may no longer exist. But, 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. Similarly, reopening a workplace may bring a higher number of requests for reasonable accommodation. In all these situations, an employer must show specific pandemic-related circumstances justified the delay in providing a reasonable accommodation to which the employee was legally entitled. 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. [You may wish to also review related Answer 18, below, written to address the context of federal agencies which publish hard and fast timelines to process reasonable accommodation requests].

D.18. Federal agencies are required to have timelines in their written reasonable accommodation procedures governing how quickly they will process requests and provide reasonable accommodations. What happens if circumstances created by the pandemic prevent an agency from meeting this timeline?

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.

Some of the issues initially created by the pandemic that delayed engaging in an interactive process and/or providing reasonable accommodation may no longer exist. But, as the pandemic continues to evolve and new issues arise, it is possible that an agency may face new challenges that interfere with responding to a request for accommodation within an agency’s timeline. Similarly, reopening a workplace may bring a higher number of requests for reasonable accommodation. In all these situations, 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.

G. Return to the Workplace

G.1. As government restrictions are lifted or modified , how will employers know what steps they can take consistent with the ADA to screen employees for the virus that causes COVID-19 when entering the workplace? 

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.” See the full answer for applicable resources.

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

G.2. An employer requires workers to wear personal protective equipment and engage in other infection control practices. Some employees ask for accommodations due to a disability or a sincerely held religious belief, practice, or observance that affects the ability to wear personal protective equipment and/or engage in other infection control practices. How should an employer respond?

In most instances, federal EEO laws permit an employer to require employees to wear personal protective equipment (PPE) (for example, masks and/or gloves) and observe other infection control practices (for example, regular hand washing or physical distancing protocols). Some employers may need to comply with regulations issued by the Occupational Safety and Health Administration (OSHA) that require the use of PPE. OSHA regulations do not prohibit the use of reasonable accommodations under the EEO laws as long as those accommodations do not violate OSHA requirements. Employers also may follow current CDC guidance about who should wear masks.

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. For general information on reasonable accommodation under the ADA, see Section D.

G.3. What does an employee need to do in order to request reasonable accommodation from an employer because the employee has one of the medical conditions that CDC says may put a person at higher risk for severe illness from COVID-19?

An employee—or a third party, such as an employee’s doctor—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.

The employee or the employee’s representative 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. The full response provides references to additional resources.

G.4. CDC identifies a number of medical conditions that are more likely to cause people to get severely ill if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that the employee’s health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation? 

The ADA does not mandate that the employer take action in this situation if the employee has not requested reasonable accommodation. Also, an employer’s duty to provide reasonable accommodation applies only if an employee has an actual disability or a record of a disability, as defined in the ADA; this means not every individual with one of the medical conditions that might place them at higher risk of COVID-19 complications will automatically satisfy these ADA definitions of disability.

Assuming the employee has a “disability” as discussed above, 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.

See the full response for more details on the ADA’s direct threat standard and related issues.

G.5. What are examples of reasonable accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self or others? 

Reasonable accommodations that may eliminate (or reduce to an acceptable level) a direct threat to self or others 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 (HEPA) filtration systems/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). In addition, 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).

See the full response for additional suggestions.

G.6. As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements?

Yes. 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. Once requests are received, the employer may begin the interactive process. An employer may choose to include in such a notice all medical conditions identified in CDC guidance that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about whom to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions which may qualify as disabilities.

Alternatively, an employer may send a general notice explaining that the employer is willing to consider employee requests for reasonable accommodation for employees with a disability or a sincerely held religious belief, practice, or observance, or to consider flexibility on an individualized basis for employees not eligible for reasonable accommodation (e.g., employees who request flexibility due to age). The employer should specify if the point of contact is different depending on whether the request is based on disability, sincerely held religious beliefs, pregnancy, age, or child-care responsibilities.

Either approach is consistent with the Age Discrimination in Employment Act (ADEA), the ADA, the Rehabilitation Act, and Title VII.

See the full response for additional information.

H. Age

H.1. CDC has explained that the risk for severe illness with COVID-19 increases with age, with older adults at the highest risk.  Do older adults have protections under the federal employment discrimination laws? 

Yes. The Age Discrimination in Employment Act (ADEA) 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. 

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for workers due to age. However, employers are free to provide flexibility to older workers; the ADEA does not prohibit this, even if it results in younger workers being treated less favorably based on age in comparison.

Older workers also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. As such, they may request reasonable accommodation for their disability.

See the full response for additional information.

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.