Legal eBulletin - October 2020

EEOC Supplements ADA Guidance on COVID-19 Issues

Diego Demaya, J.D.
Director ADA Technical Assistance

In May 2020, the U.S. Equal Employment Opportunity Commission (EEOC) began offering supplemental technical guidance regarding disability discrimination and the effects of COVID-19 pandemic imposition of social distancing and safety measures on covered employers. In a series of FAQs, the EEOC addressed how the ADA applies to employees with disabilities covering differing scenarios; e.g., workers who are at higher risk of severe illness from COVID-19, when such individuals may be excluded from the workplace, and illustration of accommodations that could reduce COVID-19 related risks to employees making disability-related reasonable accommodation requests – including employees making ADA requests for the first time.

Moreover, continually revised protocols for maintaining workplace safety necessitate medical inquiries about employees’ health that may pose ADA privacy and confidentiality problems. Additionally, the pandemic brought with it the need to allow employees to work from home whenever possible to reduce the spread of the highly contagious COVID-19 virus. This has made “telework” a necessity that has raised a myriad of questions – especially in regard to continued telework as an ADA reasonable accommodation.

On September 8, 2020, the EEOC once again supplemented its existing FAQs to provide additional guidance on some of these issues. The full guidance, including the recent updates, is available here: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

Below we review the most notable points from the September 8, 2020 additional guidance:

Health-Related Inquiries

The September 2020 guidance expresses general support for asking employees COVID-related health questions, so long as the questions pertain directly to the safety of the workplace, are non-discriminatory, and protect privacy to the best extent possible.  The guidance provides the following examples of permissible subjects for inquiry:

  • Employees physically entering the workplace, whether they have been diagnosed with COVID-19, have had symptoms, or been tested;
  • Personal travel to destinations identified by governmental authorities as requiring quarantine upon return;
  • The symptoms of employees who call in sick or report feeling ill as part of workplace screening; and,
  • Why an employee has been absent from work.

The guidance also identifies limits on permissible questions designed to either protect privacy or restrict the questions to those pertaining to safety at the workplace:

  • Employers may not ask teleworking employees who have no occasional need to enter the work site questions about COVID testing or symptoms because teleworking employees pose no safety risk to others at the workplace;
  • There must be objective evidence that an employee might have the disease before inquiries may be made to a specific employee;
  • While employers may ask employees whether they have had close contact with anybody who has been diagnosed with COVID-19 or has experienced symptoms, the question may not be specifically about employee family members.

The guidance further clarifies that employers may bar employees who refuse to comply with pandemic screening procedures.  However, employers should request the reason for the refusal and, if warranted, engage in the interactive accommodation process; e.g., a previously undisclosed medical condition that creates a higher risk of exposure.

Confidentiality of Employee Medical Information

The revised guidance confirms that ADA confidentiality does not prevent an employee from disclosing a co-worker’s COVID-19 symptoms to a supervisor.  It also confirms that if an employee is teleworking because the worker has COVID-19 symptoms, the employer has no obligation to explain why the employee is working from home to other employees. The same applies to employees on leave for a pandemic-related reason.

Reasonable Accommodations

The period of mandatory telework for some or all employees during the pandemic poses some novel issues about accommodations:

  1. The EEOC guidance confirms that accommodations granted for an employee at the worksite are not necessarily required when the employee is teleworking from home. Hence, accommodations that were necessary at the workplace may not be necessary to accommodate the employee’s disability at home.  Some accommodations that were reasonable at the workplace may be unduly burdensome to implement at home.  Thus, inquiries will be specific to individual employee circumstances.
  2. The guidance addresses requests for teleworking as an ADA accommodation following the return of employees to the workplace.  The EEOC confirms that an employer granting telework to workers to slow or stop the spread of COVID-19 does not necessarily need to grant continued telework arrangements when the work site reopens.  The fact that an employee performed telework during the pandemic is relevant, but not determinative, when the employer is considering a renewed request for telework as an ADA reasonable accommodation. Again, an employee’s request for an accommodation depends on the individual circumstances for a given employee. Moreover, the fact that an employer excused performance of certain essential job functions while telework was necessary, does not mean that the employer must continue to excuse that function when employees return to the workplace.  The ADA does not obligate an employer to permanently alter the essential functions of a position.

Individuals at Higher Risk of Contracting COVID-19

Individuals who have a medical condition or disability that imposes a higher risk of getting the virus may request ADA reasonable accommodations. In its guidance, the EEOC confirms that employees may request reasonable accommodations if the U.S. Centers for Disease Control and Prevention (CDC) deems such individuals as facing “higher risk” for severe illness from COVID-19. These higher-risk groups include:

  • People age 65 years and older;
  • People who live in a nursing home or long-term care facility; and
  • People of all ages with underlying medical conditions, particularly if not well controlled, including:
    • chronic lung disease or moderate to severe asthma;
    • serious heart conditions;
    • “immunocompromised” (Cancer, Multiple Sclerosis, Lupus, etc.);
    • severe obesity (body mass index [BMI] of 40 or higher);
    • diabetes;
    • hronic kidney disease undergoing dialysis; and
    • liver disease.

Employees in these categories may request a reasonable accommodation related to their underlying medical condition. When addressing an ADA request, employers must engage in the required interactive process that includes, among other things, discussing performance of essential job functions, modification of job duties, workplace modifications, using adaptive technologies, or making relevant medical inquiries to clarify the functional limitations posed by the disability or medical condition.

Realize that “telework” or working from home has for a long time been considered by the EEOC a typical type of accommodation regardless of the sharp increase of teleworking from home because of the COVID-19 pandemic. See, Work at Home/Telework as a Reasonable Accommodation.

Undue Hardship and Direct Threat

The ADA Undue Hardship defense allows employers to consider whether a requested accommodation might pose a significant difficulty or expense, or might be disruptive to other employees or the workplace. Moreover, employers May Bar Higher Risk Employees from the Workplace if They Pose a Direct Threat to themselves or others – unless reasonable accommodations can reduce the threat to an acceptable level of risk or remove the threat altogether.

The EEOC guidance explains that the Direct Threat defense “requires an employer to show that the individual has a disability that poses a ‘significant risk of substantial harm’ to [their] own health under 29 C.F.R. section 1630.2(r).”  The direct threat assessment must be individualized, and the employer should consider the severity of the pandemic in the geographic area where the employee works, the employee’s health condition, the particular job duties and likelihood of exposure at work, and any protective measures the employer is taking to slow the spread of COVID-19.

When an employer determines that an individual’s medical condition or disability poses a direct threat, the employer cannot by default exclude the employee from work or take other adverse action. If there is no reasonably safe option to facilitate a reasonable accommodation that eliminates or reduces the risk to an acceptable level, an employee must first be reassigned to an appropriate open job vacancy for which the employee remains qualified to perform essential job functions. Note that older EEOC ADA guidance provides that an employee with a disability may not be required to compete with other job applicants in regard to job reassignment as a reasonable accommodation. Absent open job vacancies, an employer may then consider placing the employee on paid or unpaid leave or consider termination by reason that the employee is no longer qualified to perform essential job functions with reasonable accommodation.

every step taken to consider possible accommodation or job modification alternatives, including extended telework, should be closely documented. even after engaging in a robust interactive process, any action taken short of reasonable accommodation will be based on the employee’s disability or medical condition. Thus, an employer who allowed telework for an employee who was able to perform essential job functions from home, will not likely be able to justify that continued telework for an employee with a disability poses “undue hardship” on operations. This is especially true during the COVID-19 pandemic. Once pandemic safety measures begin to relax or are no longer necessary, an employer may then determine that telework is no longer necessary when the employee who has a disability can return to the work site. Recall that employers bear the burden to prove that an employee is unable to work due to a disability that cannot be reasonably and safely accommodated.

Accommodation Ideas for High Risk Employees

The EEOC provides several pandemic-related accommodation examples that could eliminate or sufficiently reduce the direct threat that may exist for higher-risk employees at work:

  • providing protective gear that would not normally be required for the particular job;
  • taking protective measures such as creating additional space or installing barriers between an employee with a disability and others at the workplace;
  • removing discrete, non-essential, or marginal functions of a given job;
  • modifying work schedules to decrease contact with coworkers and/or the public (when on duty or commuting);
  • rearranging workspaces or “moving the location where one performs work -- if that provides more social distancing;”

The EEOC expects employers and workers to think beyond these examples and be “creative and flexible” in evaluating and developing reasonable accommodations during the pandemic. Remember that the ADA interactive process is on-going and an employee may need to experiment with suggested accommodations or modifications.

ADA Coverage of Previously Undisclosed Preexisting Medical Conditions or Disabilities

the COVID-19 pandemic surfaced ADA’s protections of individuals with pre-existing medical conditions who may not necessarily require work-related reasonable accommodations under normal circumstances; i.e., employees who have not previously disclosed a medical condition or disability for purposes of ADA accommodation. Hence, The EEOC COVID-19 guidance reminds employers to engage any employee asking for ADA accommodations in the interactive process and provide reasonable accommodations absent undue hardship – including an employee who has not previously disclosed a medical condition or disability. Employers should be prepared to work with a greater number of employees to determine and implement effective work adjustments so they will not pose a direct threat of harm to themselves due to underlying medical conditions and exposure to COVID-19.

Depending on differing circumstances, employers may find that fewer people are able to return to work at the work site, or remain at full capacity or in their original roles, for the foreseeable future due to the highly contagious nature of the COVID-19 virus. Therefore, employees with disabilities or high risk medical conditions able to perform essential job functions while teleworking during the pandemic should be allowed to continue working from home – even after employees begin to return to the work site during the pandemic.

The Southwest ADA Center is a program of ILRU (Independent Living Research Utilization), at TIRR Memorial Hermann in Houston, Texas. The Center is funded by a grant (90DP0092) from the National Institute on Disability, Independent Living, and Rehabilitation Research. NIDILRR is a Center within the Administration for Community Living (ACL), Department of Health and Human Services (HHS). The contents of this e-bulletin do not necessarily represent the policy of NIDILRR, ACL, HHS, and you should not assume endorsement by the Federal Government.