The EEOC released an update on September 8, 2020 to its technical assistance publication entitled “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 its prior guidance. In addition, the EEOC updated two of its prior statements about COVID-19. More specifically, one Q&A (Question A.6) provides more detail on the EEOC’s position related to an employer’s ability to administer or require a COVID-19 test when evaluating an employee’s initial or continued presence in the workplace. The EEOC states that employers may require testing before initially permitting the employee to enter the workplace and/or periodically to determine if the employee has COVID-19 and is a direct threat to others. If the testing is consistent with current CDC guidance, the EEOC states that the testing will meet the “business necessity” requirement for medical examinations under the Americans with Disabilities Act (ADA). This clarifies for employers that they can follow the CDC guidelines without running afoul of the ADA.
A second update (Question D.8) relates to an employer’s ability to invite employees to advise the employer if the employee needs a reasonable accommodation before entering the workplace. The EEOC states that the employer may extend such an invitation and initiate a discussion focused on whether the employee has a disability and why an accommodation is needed. The employer cannot, however, require that all accommodation requests be made by a specified date. The employer must consider accommodation requests made at a later date.