Updated on April 24
On April 17, 2020, the Equal Employment Opportunity Commission (EEOC) issued additional guidance on return to work practices when the COVID-19 restrictions ease.
As government restrictions and stay at home orders are modified or lifted, employers can make disability-related inquiries and conduct medical exams if they are job-related and consistent with business needs. If necessary, these inquiries and exams are permitted under the Americans with Disabilities Act (ADA) to exclude employees with a medical condition that that would pose a direct threat to health or safety.
Employers should use guidance from the CDC or other public health authorities to determine whether the threat exists and what screening is appropriate. For example, employers may continue to take employees’ temperatures and ask employees questions about any symptoms they may be experiencing.
On April 23, 2020, the EEOC provided further guidance that employers may test for COVID-19 so long as the test is "job related and consistent with business necessity.” Such testing is permitted under the ADA which has a framework that allows businesses to legally screen workers for COVID-19 since those who are carriers will “pose a direct threat to the health of others.”
At the same time, the EEOC warned that employers have to “ensure” that any tests are “accurate and reliable,” suggesting that businesses review guidance from public health agencies such as the Food and Drug Administration about what constitutes safe and accurate testing and keep in mind that certain types of tests could yield false positives or false negatives.
The new guidance does not explicitly address the use of anti-body tests that may be used to determine whether an individual has built up immunity to COVID-19. Further guidance may be upcoming on this issue.
Personal Protective Gear and Accommodations
An employer may also require returning workers to wear personal protective gear and engage in infection control practices at the workplace. However, if an employee asks for an accommodation to these requirements because of a disability or religious practices, the employer should discuss the request, and if feasible and not an undue hardship, provide the modification or an alternative. For example, an employee who lip-reads may need the use of a modified face mask, or an employee with religious prescriptions may need modified protective gear.
The EEOC also clarified that the determination of whether a requested accommodation is an undue hardship can consider the impact of the pandemic on the requested accommodation. So, if it is more difficult to provide temporary assignments, to remove marginal job functions, or to accommodate employees who are teleworking because of the pandemic, this may constitute an undue hardship.
Finally, employers must continue to avoid unlawful disparate treatment based on protected characteristics and should ensure that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including national origin, race, or other protected bases.
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