The EEOC released an update on September 8, 2020 to its technical assistance publication titled “What You Should Know about COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws (WYSK).” The updated guidance provides 18 new questions and answers adapted from the agency’s prior guidance, the most pertinent of which pertain to medical inquiries, employer obligations pertaining to confidentiality, and employee requests to continue teleworking. As we have noted in past articles, it is imperative that employers not overlook traditional EEO and anti-discrimination legal obligations while addressing the myriad of issues surrounding employee health and safety, alternative work arrangements, and employees’ need for leave from work that have come about due to the pandemic. The EEOC’s new questions and answers provide important guidance that will help employers remain in compliance with EEO laws.
While the ADA generally prohibits employers from making medical inquiries of employees, these rules have been loosened for those inquiries aimed to help reduce the spread of COVID-19 in the workplace. In the questions and answers that address this topic, the EEOC cautioned employers to only make necessary inquiries. For example, when it comes to asking employees if they have been diagnosed with or tested for COVID-19 or if they have had any contact with anyone who has been diagnosed with or who may have symptoms of the virus, the EEOC clarified that these inquiries are proper if asked of all employees who are physically entering the workplace regularly or occasionally. These inquiries generally should not be made of an employee who only works off site and who does not come into physical contact with others (e.g., coworkers, customers, etc.). Also, an employer should not make these types of inquiries of an individual employee (without asking everyone) unless it has “a reasonable belief based on objective evidence that this person may have the disease.” [Q&A #9]. Accordingly, an employee who works on site who calls in sick or begins feeling ill while working may be questioned about his or her symptoms in order to screen for COVID-19.
The EEOC also reminded employers not to specifically ask employees if their family members have been diagnosed with or have symptoms COVID-19, as according to the EEOC, such an inquiry violates the Genetic Information Nondiscrimination Act.
Confidentiality of Employee Medical Information
Several of the questions and answers in the EEOC’s update address confidentiality of employee medical information in the context of COVID-19. According to the update, so long as the employer does not reveal the identity of an employee who has been diagnosed with or is showing symptoms of the illness, assembling a list of coworkers the employee may have been in contact with and telling those employees about potential exposure will not violate the ADA. The employer must also make an effort to limit the number of those who are aware of the employee’s identity and must instruct such individuals to maintain confidentiality.
The EEOC also addressed when employees take leave from work or commence teleworking due to the disease. The EEOC clarified that while it is not a violation of the ADA’s confidentiality provisions to reveal that an employee is on leave or teleworking, the employer must not reveal the underlying medical reasons to other employees. Also, the EEOC reiterated that documentation supporting such arrangements must be kept in a confidential file separate from the employee’s personnel file. In that vein, the EEOC cautioned that if the recipients of such medical information are, themselves, teleworking, then they must take care that they do not maintain or store the information on shared drives or in other ways that are accessible to others.
Continued Teleworking as Reasonable Accommodation
Many employers who were either forced to or decided to shut down their offices and facilities in the early stages of the pandemic were able to continue operating their businesses via telework. One question the EEOC addressed in the update was whether an employer who ends telework arrangements and resumes in-person operations must grant an employee’s request to continue teleworking in order to accommodate a disability. In other words, is an employer who previously permitted or required its employees to telework now precluded from declining such a request? According to the EEOC, an employer need not automatically grant a request for continued telework. Rather, the employer’s obligation is to engage in an interactive dialogue with the employee, including determining whether the employee in fact has a disability that requires accommodation, assessing whether the requested accommodation is reasonable, and examining whether the requested accommodation will pose an undue hardship on the employer. The EEOC confirmed that employers are under no obligation to excuse employees from performing essential job functions, even if the employer did so during the recent shutdown. Still, the EEOC noted that an employee’s prior experience with teleworking will be relevant to the interactive discussions surrounding the employee’s accommodation request.