U.S. Equal Employment Opportunity Commission Updates Guidance for Employers on COVID-19 and EEO Laws

On September 8, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued a substantive update to its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” Much of this update incorporates and confirms guidance offered in previous sources. While guidance on this topic continues to evolve, this most recent update provides a useful snapshot to employers of what issues the EEOC feels are important to clarify.

Updates include:

• Clarification about reasonable accommodations, including:
  • Remote work experience due to COVID-19 could be relevant to evaluating the reasonableness of a request to work remotely after employees have returned to the on-site workplace. However, that remote work experience is not outcome determinative. The COVID-driven remote work may serve as an informative “trial period” showing whether the employee was able to “satisfactorily perform all essential functions while working remotely.” But the EEOC also recognizes that some essential functions may have been eliminated during the COVID-related remote work, but that does not mean they are permanently eliminated.
  • Only disability-related limitations may necessitate accommodations.
  • Employers and employees may begin the interactive process in advance of a return to the (physical) workplace request, even if the timing of reopening is not clear.
  • When remote work is temporary or of an unknown duration, certain accommodations may not be feasible or may be an undue hardship or may not be possible due to lack of access to certain items.
• Confirmation that the EEOC continues to encourage flexibility when employees express fear or request accommodation but does not permit employers to unilaterally exclude higher-risk employees even if motivated by “benevolent” reasons or concerns.
• Reaffirmation that COVID-19 infection is a direct threat under the Americans with Disabilities Act (ADA).
• Confirmation that COVID-19 testing by employers that is consistent with current CDC guidance will meet the ADA’s “business necessity” standard.
• Guidance regarding employee screening, including:
  • Clarifying the standard employers should use when administering COVID-19 tests to employees. Formerly, employers were instructed to “ensure that the tests are accurate and reliable.” The EEOC has clarified this guidance to read that employers are instructed to “ensure that the tests are considered accurate and reliable.”
  • Affirming that employers may ask employees physically entering the workplace (but not those working remotely with no physical interaction with coworkers or customers) if they have COVID-19, have been tested for COVID-19, or have COVID symptoms.
  • Clarifying that specific employees (as opposed to the entire employee population), may be subject to more extensive screening if the employer has a reasonable belief based on objective evidence, (e.g., symptoms displayed) that the individual may have COVID-19.
  • Instructing employers to ask employees physically entering the workplace whether they have had contact with anyone who has (or is likely to have) COVID-19 rather than focusing the inquiry on family members.¹
• Clarification about ADA confidentiality requirements, including guidance regarding how to appropriately report and contact-trace a diagnosed or suspected COVID-19 case while maintaining ADA confidentiality, including:
  • Stating that the ADA does not interfere with an employer’s designated representative interviewing symptomatic or diagnosed employees to get a list of people with whom the employee may have come into close contact.
  • Explaining that the question of who in an organization will need to know the identity of potentially ill employees is a context-specific inquiry.
  • Advising employers on strategies to maintain ADA confidentiality where remote work disrupts existing confidentiality protocols for storing medical information, including suggesting that managers use initials or other code to ensure confidentiality of the name of the employee on any medical records that are created at home. 
  • Recognizing that employees may advise their employers of a coworker’s symptoms without violating confidentiality constraints.

Employers who receive confidential medical information should appropriately safeguard such information, limit disclosure to those with a legitimate need to know, ensure it is stored confidentially in compliance with the ADA, and prevent the improper use of such information in any employment decisions regarding the employee. Employers will want to exercise particular care if an employee who has requested an accommodation or has revealed confidential medical information will be subject to an adverse employment action (such as a layoff, furlough, or reduction in salary or hours). Performance issues leading to termination, as well as selection criteria for group adverse employment actions, should be well documented. We note that limiting disclosure of confidential medical information or accommodation requests can also help minimize retaliation claims.

It is also worth noting what the EEOC opted not to update from its guidance. For example, the EEOC did not update its guidance regarding employer use of antibody testing to make employment decisions. The EEOC repeatedly emphasizes that equal employment opportunity (EEO) laws do not prevent employers from following Centers for Disease Control and Prevention (CDC) and other public health authority guidelines, and the EEOC may change its guidance upon updates from such public health authorities. COVID-19 guidance changes rapidly. The Sidley Employment Team is available to provide specific, timely guidance.

¹ This is because the Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members (but does not prohibit a more general inquiry about contact with anyone), and because inquiring only about family contacts would unnecessarily limit information gathered about an employee’s exposure.