On June 11, 2020, The Equal Employment Opportunity Commission (EEOC) released COVID-19 related technical guidance for employers to address the current Americans with Disabilities Act (ADA), the Rehabilitation Act, and other Equal Employment Opportunity laws, adding some much-needed clarity in these uncertain times.
Disability-Related Inquiries and Medical Exams
The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and considered a business necessity. Inquiries and medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety so long as it is consistent with advice from the CDC and public health authorities.
An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices such as hand washing and social distancing. Where an employee with a disability needs a related reasonable accommodation under the ADA, or a religious accommodation under Title VII, the employer should provide the modification or an alternative unless it would cause undue hardship on the operation.
Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.
Guidance Prohibits Discrimination Against ADA-Protected Individuals
If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee or take any other adverse action solely because the employee has a disability that the CDC identifies as placing him at “higher risk for severe illness” from COVID-19.
Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.
Additionally, the fact that the CDC has identified individuals as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.
Reasonable Accommodations
There may be reasonable accommodations that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19. The individual whose disability puts him at greater risk from COVID-19 may request such actions to eliminate possible exposure.
An employee must let the employer know that they need a change for a reason related to a medical condition (here, the underlying condition). After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.
The EEOC stated that the ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.
More From the Experts
For more information, including a Q+A response with detailed answers from the EEOC, visit https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
