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COVID-19 Medical Inquiries, Hiring, Harassment, and Reasonable Accommodations

During the COVID-19 public health emergency, employers must remember 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. The Equal Employment Opportunity Commission (EEOC), has provided…Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [guidance]…that can help employers implement strategies to navigate the impact of COVID-19 in the workplace.”

Additionally, on April 9, 2020, and April 17, 2020, the EEOC updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” FAQs to provide technical assistance regarding disability-related inquiries and medical exams, confidentiality of medical information, hiring and onboarding, reasonable accommodations, race or national origin pandemic-related harassment, and furloughs or layoffs.

Here is a summary of the key takeaways from the updated guidance:

DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMS

What and how much information can an employer request from an employee related to COVID-19?

  • Whether the employee is experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath, sore throat, new loss of smell or taste, nausea, diarrhea, vomiting, or other additional symptoms as identified by the CDC or other reputable medical sources.
  • Measure the employee’s body temperature.

When can an employer require an employee stay home and allow the employee to return to work?

  • If an employee is ill with symptoms of COVID-19, he or she should leave the workplace.
  • Employers may require a doctor’s note certifying fitness for duty when the employee returns to work.

CONFIDENTIALITY OF MEDICAL INFORMATION

How should employers handle COVID-19 related health information it obtains about its employees?

  • Any medical information, including COVID-19 related information must be stored separately from the employee’s personnel file, but COVID-19 information may be store with other existing medical information.
  • Maintain confidential logs of any temperature checks.
  • Unless disclosing to a public health agency, the employer must obtain written authorization from the employee before disclosing the name of an employee with COVID-19.
  • A staffing agency may disclose the name of an employee with COVID-19 to the employer to determine potential exposure.

HIRING AND ONBOARDING

What actions can an employer take during hiring and onboarding to assessment COVID-19 risk?

  • Screen applicants for symptoms of COVID-19 after making a conditional job offer if performed for all similarly situated employees.
  • Measure an applicant’s temperature after making a conditional job offer.
  • Delay the start date of employee’s with COVID-19 or symptoms of COVID-19 or withdraw the offer if the offer requires starting immediately.
  • Cannot delay or withdraw a job offer because the applicant is identified as being at a higher risk due to being age 65+ or pregnant.

REASONABLE ACCOMMODATIONS

When working remotely is not possible, what reasonable accommodations may employers offer employees at a higher risk for COVID-19 due to a pre-existing disability?

  • Designating one-way aisles;
  • Using plexiglass, tables or other barriers to ensure minimum distance between customers and coworkers when feasible;
  • Temporary job restructuring of marginal job duties; or
  • Modifying work schedule or shift assignment.

Are employees with pre-existing mental illnesses or disorders exacerbated by the pandemic entitled to a reasonable accommodation?

  • Employers may inquire to determine whether the condition is a disability, discuss how the requested accommodation with help the employee work, explore alternative accommodations, and request medical documentation, if needed.

How should employers handle existing reasonable accommodations or requests for accommodation?

  • Employers may give higher priority to requests that are needed while working remotely, but can continue ongoing discussions regarding accommodations the employee will not need until he or she returns to the workplace.
  • Employees already receiving an accommodation may be entitled to an additional or altered accommodation during the COVID-19 pandemic.

How should employers handle urgent accommodation requests?

  • Employers may choose to forego or shorten the interactive process to grant the request, grant short-term accommodations, or provide accommodations on an interim or trial basis while awaiting medical documentation.

Can employers ask employees in advance whether they will require an accommodation when they return to work?

  • Employers may begin the interactive process now to determine if whether a reasonable accommodation is needed when the workplace reopens.

What constitutes an undue hardship that would allow an employer to deny an accommodation request in during the COVID-19 pandemic?

  • COVID-19 may create “significant difficulty” for certain accommodations, such as conducting a needs assessment, acquiring certain items, delivery of those items to teleworking employees, providing temporary assignments, removing marginal functions, or hiring temporary workers for specialized positions.
  • COVID-19 has caused the sudden loss of some or all of an employer’s income stream meaning some accommodations may pose a “significant expense” to the employer. Employers should consider the amount of its discretionary fund available at this time and when restrictions may be lifted to weigh the cost of an accommodation against its current budget.

RACE OR NATIONAL ORIGIN PANDEMIC-RELATED HARASSMENT

How can employers help reduce harassment directed towards individuals due to their national origin, race, or other protected characteristics?

  • Anti-harassment policy tips for small businesses
  • Select Task Force on the Study of Harassment in the Workplace (includes detailed recommendations and tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated):
    • report;
    • Checklists for employers who want to reduce and address harassment in the workplace; and,
    • chart of risk factors that lead to harassment and appropriate responses.
  • Remind all employees that it is against federal law to harass or otherwise discriminate against a coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information.

FURLOUGHS AND LAYOFFS

Can an employee release all discrimination claims against the employer in exchange for a severance package?

RETURN TO WORK

As the country reopens, what steps can employers take to comply with the ADA when screening employees for COVID-19 or requiring personal protective gear when reentering the workplace?

  • Employers may screen for COVID-19, by administering a test, checking temperature or asking questions about symptoms, as long as it is consistent with public health authority and CDC advice for that type of workplace.
  • Employers may require employees to wear protective gear and follow infection control best practices to the extent it does not infringe on a reasonable accommodation, such as the need for non-latex gloves, modified face masks for individuals that interpret or communicate using lip reading, or gowns for individuals using a wheelchair.

For more information on evolving compliance regulations the wake of the COVID-19 pandemic, visit the OneDigital Coronavirus Advisory Hub, or reach out to your local OneDigital advisory team. 

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