By Gerald L. Maatman, Jr. Alex S. Oxyer, Christopher DeGroff, and Matthew J. Gagnon

Seyfarth Synopsis:  On March 27, 2020, the EEOC announced its views on the COVID-19 pandemic. In particular, the EEOC provided guidance on how laws under its jurisdiction, such as the ADA, Title VII, and GINA, should be applied in these challenging times. The EEOC’s announcements are a must read for all employers.

The EEOC conducted a “town hall” style meeting in a webinar it hosted on March 27, 2020.  The meeting was conducted by Carol R. Miaskoff, the EEOC’s Associate Legal Counsel; Sharon Rennert, Senior Attorney Advisor; and Jeanne Goldberg, Acting Assistant General Counsel. The webinar focused primarily on various questions and considerations submitted to the Commission related to the Americans With Disabilities Act (“ADA”), but also addressed certain issues relative to Title VII, the Age Discrimination in Employment Act (“ADEA”), and even the Genetic Information Non-Discrimination Act (“GINA”). The following are key highlights from the presentation.

Medical Questionnaires And Examinations

In line with the EEOC’s COVID-19 Guidance issued March 19, 2020, the March 27 webinar emphasized that ADA rules and regulations should not prevent employers from following guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. This flexibility extends to medical questionnaires and examinations in the workplace – specifically, the EEOC has explicitly opined that employers may take the temperatures of employees and may ask employees whether they have COVID-19 and whether they have symptoms of COVID-19, as long as they are doing so with all employees who would endanger others in the workplace if they contracted or were exposed to the virus. Further, the EEOC stated that it agreed that employers may bar employees from the workplace who have COVID-19, who have symptoms of COVID-19, or who refuse to have their temperatures taken or refuse to answer questions related to having symptoms of the virus.

But this flexibility is not without its limits. The EEOC emphasized that if employees do not come into contact with others in the workplace and would not put anyone at risk if they had the virus, employers cannot inquire about their symptoms and medical condition, nor may they take such an employee’s temperature. Further, employers may only single out an employee for taking their temperature or for medical questioning if they have objective evidence that the employee has symptoms of the virus or has had contact with someone with the virus. Finally, when inquiring about exposure to anyone with COVID-19, the EEOC stated that it is best practice to only ask if the employee has had contact with anyone with the virus or symptoms of the virus and to avoid asking about an employee’s family specifically, as GINA prohibits an employer from requesting the medical information or history of the employee’s family members.

Disclosure Of An Employee’s Exposure To The Virus

Other frequently asked questions to the EEOC relate to the disclosure obligations and limitations surrounding employee exposure to COVID-19. The EEOC stressed that although employers can inform their workforce that someone in the organization has or has been exposed to coronavirus, employers should still take care to not share the identity of the employee outside of a few key individuals within the company, as widespread disclosure of the employee’s identity could run afoul of the ADA. Further, employers are not obligated to share with the rest of the workforce that an employee is on medical leave or working from home due to coronavirus and should be careful not to do so unless there is a specific need for an individual to know the information. However, the ADA does not prevent employees from reporting coworkers exhibiting symptoms of the virus to supervisors or employers from reporting a diagnosis of COVID-19 to appropriate authorities (in fact, many states require such a disclosure).

Discrimination Considerations During The Pandemic

The Commission further addressed several questions regarding employer obligations in allowing employees to work from home and limitations in furloughing employees. Many employers asked if they are obligated to allow employees more at risk from the virus, such as employees over 65 or pregnant employees, to work from home. The EEOC concisely responded that employers are not obligated to allow such employees to work from home unless other, similarly situated employees outside of such groups were allowed to telework. The EEOC also reminded employers that, under federal law, they could not target employees over 65 or pregnant employees for furlough or layoff based on their “at risk” status. Finally, the EEOC again emphasized concerns about national origin discrimination and harassment related to coronavirus and reminded employers that such behavior should not be tolerated in the workplace, which is consistent with EEOC Chair Janet Dhillon’s message from earlier this week (posted here) expressing concerns about discrimination against Asian Americans and other people of Asian descent.

Reasonable Accommodations And The Interactive Process

The EEOC also focused on many questions related to reasonable accommodations and the interactive process during the pandemic. The EEOC first clarified that it does not yet have enough information to determine whether COVID-19 itself is a disability requiring reasonable accommodation. However, the virus creates other implications for employees with disabilities and their employers.

First, to the extent employees are at greater risk of COVID-19 due to preexisting disabilities, requests from those employees to take leave or work from home could be considered requests for reasonable accommodations. Employers may treat such requests as they normally would through the interactive process and are entitled to verify that the employee has a disability, that the disability would be exacerbated by COVID-19 or would put the employee at greater risk, or that the accommodation would address the issue. However, the EEOC requested that employers take into account that physicians and hospitals may not have the bandwidth to verify such requests and there are other ways to verify a disability, such as insurance paperwork or prescriptions.

Next, given the urgency of the pandemic, the EEOC asked that employers give requests for accommodation prompt attention. To the extent employers need to verify a disability or accommodation during the interactive process, the EEOC suggested several times that employees be granted accommodations on a temporary basis while the interactive process is moving forward. The Commission also emphasized that this is a time for flexibility and creativity when working through accommodation requests.

Finally, the EEOC addressed concerns that allowing work from home or telework during the pandemic would force employers to grant such accommodations after the pandemic is over. The EEOC reminded employers that if there is not a disability-related reason for working from home, or if there is another option that addresses the concern, employers are not obligated to grant working from home as an accommodation. Additionally, even if employers are waiving some essential functions of employee duties during the pandemic, they are not obligated to do so moving forward. However, the Commission did note that if an employee had previously been denied working from home due to concerns about productivity, allowing the employee to work from home during the pandemic could serve as a “trial run” that may obligate the employer to grant the accommodation request after the pandemic ends.

Implications For Employers

The EEOC’s presentation provided much-needed guidance to employers on how to navigate the challenging issues arising during the COVID-19 pandemic. As they are working through issues during these trying times, employers should pay close attention to which regulations have been relaxed by the EEOC and which are still of particular concern for the Commission.