New York Labor and Employment Law Report
EEOC Issues New Guidance on COVID-19
April 20, 2020
On April 17, 2020, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on COVID-19 in the workplace. The EEOC has been releasing information on the pandemic for employers since mid-March, and the most recent updates to the guidance primarily focus on how employers should accommodate employees during the pandemic as well as how to return individuals to work once the pandemic subsides.
An employer’s duty to accommodate an employee with a disability continues during the pandemic, even if the employee is working remotely. Per the guidance, employers may request information from the employee as part of the “interactive process” to determine if the employee’s condition is a disability under the Americans with Disabilities Act (ADA). The EEOC states: “Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the essential functions of his or her job.” Moreover, given the fluctuating conditions of the pandemic, the EEOC permits employers to use “short-term” accommodations, with fixed end dates, or to implement accommodations while awaiting the receipt of medical documentation.
The guidance also acknowledges that the pandemic creates new types of “undue hardships” for employers, which may prevent them from accommodating disabled employees. Particularly, the EEOC notes that the increased financial hardship brought on by the pandemic may make it difficult for employers to implement accommodations which require a financial commitment. There may also be complications involved with providing employees with temporary assignments, or to provide materials for employees who request to work from home. Despite the EEOC’s apparent easing of the “undue hardship” standard, employers are cautioned to be careful before denying a disabled employee an accommodation, even during a pandemic.
Employers may also ask affected employees, prior to returning to the workplace, if they will need accommodations when they return to work. Furthermore, employers may be permitted to screen employees for symptoms of COVID-19, as the EEOC notes that the ADA permits employers to make disability-related inquiries and conduct medical exams if consistent with business necessity, which is the case when an employee could pose a “direct threat” to others. The guidance states that the best indicator of whether a direct threat exists comes from the federal and state public health authorities regarding the state of affairs at the time the workplace re-opens. The guidance also notes that employers may require employees to wear personal protective gear, such as masks and gloves, as well as observe infection-control practices like hand-washing and social distancing, when they return to the workplace. However, to the extent employees need modified equipment or practices to accommodate their disabilities or religious beliefs, employers are required to provide them as long as they do not cause the employer an undue hardship.
Finally, the EEOC reminds employers that guidance from the public health authorities will change as a pandemic evolves, and that “employers should continue to follow the most current information on maintaining workplace safety.” Therefore, if an employer takes an employment action using guidance from the Centers for Disease Control, Department of Health, the Occupational Safety and Health Administration, or state equivalents, the employer should ensure that it documents the guidance that it followed in making its decision. This information may be useful at a later date, especially if the employer is required to defend the reasoning behind its employment decision.
