On Sept. 8, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) revised its question and answer guidance designed to help employers and employees respond to issues resulting from the COVID-19 pandemic. “What You Should Know About COVID-19 and the Americans with Disabilities Act (ADA), Rehabilitation Act and Other EEOC Laws” was first posted on March 17, 2020, and has been updated several times.
The new updates added 18 questions and answers which the EEOC adapted from its “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” (publication first written during the H1N1 outbreak which was updated and released on March 21, 2020) and its March 27, 2020, webinar. Readers can identify the new and modified questions and answers because the EEOC includes the date the question was first answered, and its source, in a parenthetical.
As employment attorneys, we frequently refer to technical guidance and other sources from federal, state and local agencies, all of which are tasked with applying and enforcing employment laws. In response to the pandemic, agency guidance, which is usually given deference by the courts, provides employers with assurance and direction. Along similar lines, the U.S. Department of Labor fact sheets are highly useful in plainly explaining employer obligations under federal wage and hours laws such as the Fair Labor Standards Act. With rampant misinformation on the internet, these government websites can provide a source for reliable information.
In its updated guidance, the EEOC added to several answers and includes new questions and answers. For instance, in new Question A.10, “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?” The EEOC confirmed that employers may not ask that question without running afoul of the Genetic Information Nondiscrimination Act which prohibits employers from asking employees medical questions about family members. The EEOC, however, offered a workaround by advising employers they may ask their employees whether they have had contact with anyone diagnosed with COVID-19 or anyone who may have symptoms associated with the disease.
Helpfully, the EEOC also added Question A.11, “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?” Here, the EEOC quite pointedly answered that the ADA would allow the employer to bar that employee from physical presence in the workplace. Of course, the EEOC suggests that the employer ask follow-up questions to try to better understand the employee’s refusal.
To employers who believe they are powerless to ask employees questions, the EEOC offers some assurance. At Question A.13, the EEOC asked, “May an employer ask an employee why he or she has been absent from work?” Surprising perhaps to some employers, the EEOC answered “Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is entitled to know why an employee has not reported for work.”
The EEOC also added Question A.14, “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 employee has traveled?” Helpfully and directly, the EEOC answered “No.” It continued, “[q]uestions about where a person traveled would not be disability-related inquiries. If the Centers for Disease Control and Prevention, or state or local public health officials recommend that people who visit specified locations remain at home for a certain period of time, an employer may ask whether employees are returning from these locations, even if the travel was personal.” This is good news for Chicago employers living with states rotating on and off the travel ban list.
Along a similar vein, the EEOC counseled employers on what they can say about an employee if the employee is teleworking because they have COVID-19 or symptoms associated with the disease (see Question B.7). The EEOC advised that an employer may inform its staff that an employee is teleworking but not explain “why.” The EEOC notes: “If staff need[s] to know how to contact the employee, and that employee is working even if not present in the workplace, then disclosure that the employee is teleworking without saying why is permissible.” Likewise, “if the employee [is] on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.” With so much uncertainty and confusion caused by the pandemic, these common sense answers and guidance are exceedingly welcome.
The EEOC also added new guidance on reasonable accommodation and how employers can engage in the required interactive accommodation review process with their employees. For instance, the EEOC explained that it does not have to automatically grant telework as a reasonable accommodation to every employee with a disability even if the employer had been granting telework to that employee to slow or stop the spread of COVID-19 (see Question D.15). The EEOC explained, “Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation.” Continuing, “[t]he fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19 or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation or that it does not pose an undue hardship.” The ADA interactive accommodation review inquiry is always a fact-specific determination. The EEOC will find, however, that an employee’s temporary telework experience is a factor relevant to considering an employee’s request to continue to telework (see Question D.16).
In another section, the EEOC addressed age, which is not a disability under the ADA (see Question H.2). “If an employer is choosing to offer flexibility to other workers, may older comparable workers be treated less favorably based on age?” The EEOC answered, “No. If an employer is allowing other comparable workers to telework, it should make sure it is not treating older workers less favorably based on their age.” The EEOC, however, noted that the Age Discrimination in Employment Act (ADEA) allows employers to offer more flexibility to older workers, even if it resulted in younger workers being treated less favorably based on age in comparison (see Question H.1). That said, the ADEA does not require employers to offer reasonable accommodations for older workers simply because of their age.
Employers are encouraged to review this new guidance for employment questions relating to the pandemic. As always, contact a Chuhak & Tecson Employment attorney who is standing ready to guide you through this difficult time.
Client Alert authored by Jeralyn H. Baran (312 855 4613), Principal and leader of Chuhak & Tecson’s Employment practice.
This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.