On March 27, 2020, the EEOC released a webinar addressing frequently asked employer questions regarding federal antidiscrimination laws, such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and the Genetic Information Nondiscrimination Act (“GINA”), during the COVID-19 pandemic (the “Webinar”).  The Webinar reviewed a number of important issues for employers to understand to avoid running afoul of the above-listed statutes during the pandemic.  Key takeaways from the Webinar, organized by topic, are summarized below.

Permissible Employer Conduct in the Workplace

 While many workforces are either closed or operating on a fully remote basis, the Webinar answered a number of questions from employers who are still permitted to conduct on-premises operations.  Specifically, the EEOC advised as follows:

  • Employers may ask all employees who physically enter the workplace if they: (i) have COVID-19; (ii) have been tested for COVID-19; or (iii) are experiencing symptoms associated with COVID-19. Employers may also check the temperatures of employees entering the workplace.  If an employee refuses to answer or refuses to submit to a temperature check, the employer may refuse to permit him or her to enter the workplace.  However, employers are encouraged to reassure refusing employees that the questions are simply designed to ensure workplace safety.
  • Employers may single out individual employees for temperature checks or questioning only if the employer has a reasonable belief, based on objective evidence, that the employee has COVID-19 or symptoms associated with COVID-19.
  • Employers may ask employees if they have had contact with anyone who has been diagnosed with COVID-19 or who has symptoms of COVID-19. Employers should avoid limiting this question to inquiries about family members, as this may violate GINA.
  • If a manager learns that an employee that he or she supervises has COVID-19 or symptoms associated with COVID-19, the manager may disclose this information to an employer official so that the employer may take action consistent with CDC guidance. However, as a general rule, employers should make “every effort” to limit the number of people who know the employee’s identity, and those who know the employee’s identity should be advised to keep the information confidential.
  • In the event that an employee needs to telework or take leave due to COVID-19, employers may disclose the fact that the employee is either teleworking or taking leave, but not the reason why.
  • Employers may not exclude older or pregnant employees who may be at a higher risk of complications if they contract COVID-19 from the workplace. Such conduct violates the ADEA, Title VII and other applicable federal antidiscrimination laws.  Conversely, employers are not obligated to grant requests to telework from employees simply on the basis of their age or pregnancy.  As described below, employees who have a preexisting medical condition or medical conditions associated with pregnancy may be entitled to a teleworking accommodation.

Teleworking Issues

The EEOC also addressed employer questions concerning the application of federal antidiscrimination laws for employees who currently telework, and informed employers that:

  • Unlike employees who are required to come to the workplace, employers may not ask teleworking employees if they have COVID-19, have symptoms associated with COVID-19, or have been tested for COVID-19.
  • The ADA’s requirement that medical information be kept separate from other personnel continue to apply. If an employer cannot follow existing protocols, the employer should safeguard medical information to the greatest extent feasible, including taking care not to leave notepads or laptops where others can see them.
  • Employers who implement teleworking to slow or stop COVID-19 are not required to automatically grant teleworking as a reasonable accommodation to employees with a disability who wish to continue this arrangement after the crisis passes. This is particularly true where the temporary teleworking arrangement excused an employee from performing all of the essential functions of his or her job.
  • On the other hand, employees who requested teleworking as a reasonable accommodation before the COVID-19 crisis, and who were denied, may renew their request for teleworking after employees are allowed to return to the office. An employer in such a situation should consider the renewed request in light of the information learned during the teleworking period, including whether the employee could perform the essential functions of his or her job.

COVID-19 and the ADA

A number of the questions the EEOC addressed during the Webinar specifically focused on compliance with the ADA during the COVID-19 pandemic, as summarized below:

  • It is “unclear at this time” whether COVID-19 is or could be a disability under the ADA.
  • Employees with a disability who may be at greater risk of severe illness if they contract COVID-19 may request a reasonable accommodation. Upon receiving such a request, employers should focus on implementing an interactive process that is as “flexible and creative” as possible.
  • Employers may verify that an employee has a disability and needs the requested accommodation. However, employers must understand that health care providers may have difficulty responding quickly and be open to alternative ways to substantiate the request, such as health insurance or prescription records.
  • Due to the emergent nature of COVID-19, employers are encouraged to provide requested accommodations on a temporary basis while they are waiting for more information or discussing the request with the employee.
  • Because employees are only entitled to reasonable accommodations for their own disabilities, employers are not obligated to grant reasonable accommodations to employees who have a family member at greater risk of severe illness due to a disability, provided the employer implements its own policies equally.

We will continue to monitor available guidance and provide updates regarding the EEOC’s response to the COVID-19 pandemic.

As you are aware, things are changing quickly and there is no clear-cut authority or bright line rules.  This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand.  This article does not address other the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

 

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*This alert is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney client relationship.  Please contact your Sheppard Mullin attorney contact for additional information.*