On April 23, 2020, the U.S Equal Employment Opportunity Commission (EEOC) published updates to the Frequently Asked Questions (FAQ) that it originally published on March 17, 2020, to address COVID-19 issues. These FAQs provide guidance to employers for compliance with federal laws in general and specifically as these laws pertain to the unique circumstances presented by COVID-19. Most significantly, the EEOC has clarified than an ADA-covered employer may administer a COVID-19 test to an employee prior to permitting the employee to enter the workplace, without running afoul of EEO laws.
With regard to the permissibility of COVID-19 testing, the EEOC has interpreted long-standing, pre-pandemic guidance and concluded that a COVID-19 test is “job related and consistent with business necessity” because of the direct threat posed to employee health by a co-worker, customer, or vendor who tests positive for COVID-19. The EEOC advises that employers should ensure that any such test is “accurate and reliable,” and may consider the incidence of false-positives and false-negatives associated with a particular test. Cozen O’Connor has previously published guidance on COVID-19 testing, as well as the potential pitfalls of temperature testing. Employers should review this guidance and maintain stringent safety and privacy protocols in any COVID-19 testing.
The FAQs contain additional guidance for employers. The FAQs make it clear that the:
EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.
In other words, employers may comply with guidance from CDC without running afoul of the ADA. For example, the EEOC advises that ADA-covered employers may take employees’ temperatures and inquire as to whether employees have experienced symptoms of COVID-19 because of the risks of community spread acknowledged by the CDC and other health authorities.
Similarly, the EEOC has stated, the COVID-19 pandemic does not relieve ADA-covered employers of their obligation to provide reasonable accommodations for employees with pre-existing physical and mental disabilities. The EEOC notes that COVID-19 presents increased risks to individuals with certain pre-existing physical disabilities, who therefore may request accommodations to prevent them from potential exposure. “Even with the constraints imposed by a pandemic,” the FAQs provide, “some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.” For example, the EEOC has said, employees with mental health diagnoses such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.
Finally, the EEOC FAQs explain that the ADA and the Rehabilitation Act continue to apply to critical and essential workers, and that employers should consider requests for future accommodations pertaining to a time after employees who are on leave or working from home return to work. As always, employers should evaluate requests for reasonable accommodations carefully and consult with counsel as appropriate.
