The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued new guidance to employers regarding the COVID-19 pandemic. Notably, and in a significant departure from prior guidance, the EEOC advises that employers may administer a COVID-19 diagnostic test to an employee before entering the workplace. The EEOC also clarified employee rights and employer responsibilities relating to accommodations. It will be critical for employers to understand this guidance from the EEOC, as well as orders and related guidance from federal, state, and local authorities, as they prepare to bring employees back to work safely.

Testing Employees for COVID-19

The EEOC has previously advised that, under the Americans with Disabilities Act (“ADA”), an employer can only require an employee to undergo a medical test if that test is “job related and consistent with business necessity.” Under this exacting standard, it was not clear whether an employer could test its employees for COVID-19 before entering the workplace. The EEOC has now clarified that, because an individual with the virus will pose a direct threat to the health of others, employers may take steps to determine if employees entering the workplace have COVID-19, even if those steps involve a medical test. Accordingly, an employer may choose to administer COVID-19 testing to employees before they enter the workplace.

The EEOC reminds employers that, consistent with the ADA, employers should ensure that the tests are accurate and reliable. Guidance from the U.S. Food and Drug Administration describes the rapidly developing field of COVID-19 testing, and advises which tests may or may not be considered safe and accurate.  Employers should consider the incidence of false-positives or false-negatives associated with any particular test.  Moreover, even accurate testing only reveals if the virus is currently present in the test subject; a negative test does not mean the employee will not acquire the virus later. While testing is now permissible under EEOC guidance, employers should consider these issues and consult with legal counsel before implementing a testing protocol at their workplace.

The Interactive Process and Accommodations During the COVID-19 Pandemic

The EEOC also clarified an employer’s rights and obligations under the ADA when an employee requests an accommodation for a disability under the ADA.

First, the EEOC clarified that an employer still has the right to request medical documentation to determine whether an employee has a “disability” as defined by the ADA, and to gather additional information regarding a requested reasonable accommodation. The Centers for Disease Control and Prevention (“CDC”) recommended that employers consider loosening the requirement that an employee provide a doctor’s note to justify an extended absence due to COVID-19, recognizing the strain on the healthcare system resulting from COVID-19. However, the EEOC made clear that employers have no obligation to loosen their own requirements for medical documentation.

Additionally, the EEOC acknowledged that due to the pandemic, some employers may have limited time and resources available to discuss a requested accommodation. Therefore, some employers may choose to forgo or shorten the exchange of information with an employee and his or her healthcare provider regarding a requested accommodation (known as the “interactive process”). Instead, an employer may choose to grant a temporary accommodation with a specific end date. Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts the employee at greater risk during this pandemic.

Finally, the EEOC explains that an employer may consider circumstances related to or caused by the COVID-19 pandemic in determining whether a requested accommodation constitutes an undue hardship. Employers are not required to provide an accommodation if it would pose an “undue hardship” on the employer—for example, if the request would cause significant difficulty or considerable expense for the employer. The EEOC acknowledged that a request for accommodation that may not have posed an undue hardship prior to the COVID-19 pandemic may pose one now. For example, it may be significantly more difficult to provide employees with temporary assignments, or remove and/or reassign non-essential job functions and duties.  An employer can also consider its loss revenue due to the pandemic in assessing whether the expense associated with a requested accommodation constitutes an undue hardship.

This guidance provides considerable latitude for employers during the pandemic, but the interactive process is highly fact-specific. Employers should demonstrate flexibility and be receptive to requested accommodations. However, the EEOC’s updated guidance recognizes the difficulties presented by the ongoing pandemic, and gives employers some clarification regarding their obligations under the ADA.

Return to Work Considerations

Finally, the EEOC provided guidance regarding “return to work” procedures and precautions as government stay-at-home orders and other restrictions are modified or lifted.

First, the EEOC explains that an employer likely may screen employees for COVID-19 when entering the workplace without violating the ADA. Employers are permitted to make “disability-related inquiries” and conduct medical exams if those inquiries and exams are job-related and consistent with business necessity, and if those inquiries and exams are necessary to exclude employees who would pose a “direct threat” to employee health and safety.

While the direct threat analysis must be made on a case-by-case basis, the CDC and other public health entities have declared COVID-19 a pandemic. Employees with COVID-19 would very likely pose a “direct threat” based on the best available medical evidence at this time. Therefore, screening employees for COVID-19 and related symptoms (including testing, as discussed above) during the pandemic to exclude them from the workplace would be consistent with the ADA. Screening procedures may include taking employees’ body temperatures and asking questions about symptoms before permitting employees to enter the workplace.  When conducting employee screening, employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

Additionally, the EEOC advised that employers may require employees to wear protective gear (including personal protective equipment (“PPE”) or cloth masks) and implement social distancing and other infection control practices. However, employees are entitled to request accommodations to either protective gear requirements or infection control practices based on a disability or religious beliefs. For example, an employee with a latex allergy may request non-latex gloves. Similarly, an employee may request modified protective gear due to religious garb or practices. While not every such request must be granted, employers should discuss the request and provide the modification or an alternative if reasonable and not an undue hardship on the operation of the employer’s business.

The COVID-19 pandemic and its impact on the workplace is rapidly evolving.  Employers should regularly consult with legal counsel, the CDC website, and state and local health departments to ensure they have the most up-to-date information and guidance.

BCLP has assembled a COVID-19 HR and Labor & Employment taskforce to assist clients with labor and employment issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com.   You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html