EEOC Continues to Update Guidance on Steps Employers May Take to Control the Spread of COVID-19 Without Violating the ADA

Among other things, not only has the EEOC generally directed that employers may take an employee’s temperature before she/he enters the workplace but, on April 23, 2020, the agency informed employers that they also may choose to administer COVID-19 tests to employees before they enter the workplace. That said and assuming an employer could obtain enough tests to screen its workforce, there are a number of other issues related to testing about which employers must be aware:

First, the EEOC cautions employers that they should ensure, to the extent possible, that the tests being used are accurate and reliable.  While there are a number of websites where employers can go for guidance on how to test accurately and reliably, including websites from the CDC, the WHO, the FDA, and local public health authorities, the information on those websites is likely to change on a regular basis.  Accordingly, employers must check those websites routinely to ensure as much as possible that they are complying with the law.

Second, the EEOC notes that a negative test result offers only a limited amount of information. Putting aside the possibility that the result may not be accurate, a negative test result informs an employer only that the employee had not been infected as of the time of the test. The test says nothing about the future. The employee still may contract the virus at some later time, at which point the employee would then not be permitted to return to work.

In addition to the foregoing, on April 17, 2020, the EEOC provided updated answers to many questions related to an employer’s obligation to provide reasonable accommodation to qualified individuals with a disability under the ADA. Among other things, the EEOC recognizes that some accommodations that may not have posed an “undue hardship” before the pandemic, may pose an undue hardship now. According to the agency, an example of this is if the pandemic has made it significantly more difficult to conduct a needs assessment, to acquire certain items, to provide employees with temporary assignments, to remove “marginal functions,” or to hire temporary workers for specialized positions. Relatedly, while, prior to the COVID-19 pandemic, most accommodations likely would not have been considered a “significant expense” to the employer when considering an employer’s overall budget and resources, the EEOC acknowledged that a sudden drop in some or all of the employer’s revenue may render the expense of an accommodation “significant.” As with all accommodation requests, the EEOC says that it expects employers and employees to engage in the interactive process to the extent possible and “work together” to enable the disabled employee to perform the essential functions of his/her job.

Finally, given that it seems likely that employers will be required or will want to mandate employees to wear face masks and observe infection control practices like frequent handwashing, the EEOC updated its guidance to comment on the possibility that certain employees may need some accommodations regarding these specific requirements, which accommodations were not needed before. As an example of this, the EEOC describes an employee who may be unable to communicate with colleagues wearing face masks because the employee is hard of hearing and must read lips. When handling accommodation requests related to COVID-19 safety measures, the EEOC’s general guidance is the same as it has been for all other accommodation requests. The EEOC instructs employers to provide the accommodation or an alternative if feasible and if it does not cause an undue hardship.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Author Lee D. Moylan is a partner in the labor & employment practice group at Klehr Harrison.