EEOC Issues Updated Guidance: COVID-19 Technical Assistance Publication

By Tom Peak, Partner
and Lauren Hadden, Associate
Taylor Porter Employment, Labor and Benefits Practice Group

On April 17 and 23, 2020, the Equal Employment Opportunity Commission issued additional guidance related to the impact of COVID-19 on the ADA, the Rehabilitation Act and other Equal Employment Opportunity laws. The following is meant to serve as a summary of the most relevant points addressed by the EEOC.

The full article may be accessed at:

Accommodation Requests During the Pandemic

If an employee’s disability is not obvious or known, an employer may still ask questions and/or request medical documentation to confirm that an employee has a recognized “disability” as defined by the Americans with Disabilities Act (“ADA”) and may continue to use this information to determine whether the employee’s disability necessitates an accommodation. The Guidelines go onto to provide sample questions an employer may use.

Shortening the Interactive Process During the Pandemic

Given the current pandemic, an employer may choose to shorten or altogether forgo the interactive process during this time period and instead may grant a temporary accommodation without the necessity of engaging in a lengthy exchange of information with an employee concerning an accommodation request.

As government restrictions change and/or are lifted, the need for accommodations may also change, resulting in more requests for short-term accommodations. The Guidance suggests that employers may place an end date on such short-term accommodations (for example, either a specific date such as May 30, or a more general time period, such as “when the employee returns to the workplace as a result of the government’s lifting of its current crowd restrictions”).

During this time, employers may also provide requested accommodations on an interim or trial basis, with (or without) an end date, while awaiting medical documentation. Employers should be mindful that extension may be necessary, particularly if current government restrictions are extended or new ones are adopted.

Defining an “Undue Hardship” During the Pandemic

In some instances, what constitutes an “undue hardship,” such that an employer would not be expected to provide the requested accommodation may be different during the pandemic. Consequently, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. For example, it may be significantly more difficult to acquire certain items or to provide employees with temporary assignments. Employers are encouraged to work together with employees to determine if possible alternatives exist that do not pose such hardships on the employer.

Cost as an “Undue Hardship” in a COVID reduced income work environment

While prior to the pandemic many accommodations did not pose a significant expense when considered against an employer’s overall budget and resources, the sudden loss of some or all of an employer’s income stream is a relevant consideration  when evaluating whether a requested accommodation poses a “significant expense” in the current work environment. The Guidance is clear that an employer must weigh the cost of an accommodation against its current budget or resources and may still be required to provide a low- or no-cost accommodation where such an accommodation exists.

Compliance with the ADA in connection with Return to Work Inquiries

As government stay-at-home orders and other restrictions are lifted, employers are permitted to make disability-related inquiries and conduct medical exams prior to allowing employees to return to the workplace.

The EEOC Guidance indicates that an employer may insist on COVID-19 testing as a prerequisite to an employee returning to the workplace because of the direct threat posed by an individual with the virus. However, it also notes that employers should rely on pertinent guidance about what is considered safe and accurate testing. The Guidance also cautions that such testing may be of limited value as a result of false-positives/negatives and other testing limitations.

The Guidance describes checking an employee’s temperature and self-reporting requirements as examples of permissible screening tools.

Employers may also ask employees if accommodations will be needed upon return to work. This interactive process can begin before the employee returns or the workplace re-opens.

Employers may not engage in disparate treatment based on protected characteristics in decisions related to screening and exclusion.

Accommodations Concerning Modified Protective Gear

An employer may require employees to wear protective gear and observe infection control practices upon returning to work; however, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face mask), employers are directed to discuss the request and provide the modification or alternative if the requested modification is feasible and does not cause an undue hardship.

If you have any further questions, please do not hesitate to contact any member of the
Taylor Porter Employment, Labor and Benefits Practice Group. We will continue to alert you of these updates and post any news and legal developments to our Coronavirus Legal Blog and Resources section of our website.

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