Written By ESR News Blog Editor Thomas Ahearn
On September 8, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted an updated technical assistance publication incorporating information from other agency resources and modifying two existing questions and answers (Q & As) to create a comprehensive guide that addresses questions about Coronavirus (COVID-19) pandemic and federal equal employment opportunity laws, according to an EEOC press release.
The EEOC – which enforces federal laws prohibiting employment discrimination – updated the publication titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” by adding 18 Q & As adapted from two other EEOC technical assistance resources: a “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” document and an EEOC webinar from March 27, 2020.
In addition, the EEOC updated two existing Q & As. In one, the EEOC fully explained its existing position about employers administering COVID-19 tests before permitting employees to enter the workplace. In the other, the EEOC clarified its position on employers’ authority to invite employees not currently in the workplace to request disability accommodation in advance of their expected return if they choose to do so. Here are the questions:
- May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace?
- May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19?
- May a manager ask only one employee – as opposed to asking all employees – questions designed to determine if she has COVID-19, or require that this employee alone have her temperature taken or undergo other screening or testing?
- May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?
- What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19?
- During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick?
- May an employer ask an employee why he or she has been absent from work?
- When an employee returns from travel during a pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled?
- Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do?
- An employee who must report to the workplace knows that a coworker who reports to the same workplace has symptoms associated with COVID-19. Does ADA confidentiality prevent the first employee from disclosing the coworker’s symptoms to a supervisor?
- An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why?
- Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely?
- May an employer invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace?
- When an employer requires some or all of its employees to telework because of COVID-19 or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations for disability under the ADA or the Rehabilitation Act that it provides to this individual in the workplace?
- Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?
- Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request?
- Might the pandemic result in excusable delays during the interactive process?
- 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?
- What are additional EEO considerations in planning furloughs or layoffs?
- If an employer is choosing to offer flexibilities to other workers, may older comparable workers be treated less favorably based on age?
The newly incorporated Q & As in the document “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” are identified with a parenthetical that lists the date (9/8/20) and provides the source from which they were adapted. The updated Q & As are available on the EEOC website at www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
Coronavirus (COVID-19) is a potentially deadly respiratory illness that spreads from person to person. As of September 10, 2020, there are more than 27.8 million global cases and more than 904,000 global deaths, while the United States leads the world with more than 6.3 million cases and more than 190,000 deaths, according to research from the Center for Systems Science and Engineering (CSSE) Johns Hopkins University (JHU).
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