EEOC Publishes Additional Guidance Addressing “Return to Work” Issues and Employee COVID-19 Testing

A few key points:

• The updated EEOC guidance addresses practical return-to-work issues that employers and employees will face during this transition, including medical examinations, confidentiality of medical information and reasonable accommodations.
• The EEOC allows employers to implement mandatory COVID-19 testing of employees prior to returning to work, but practical uncertainties remain.
• Workplace discrimination laws are not intended to interfere with or prevent employers from following guidelines set by the CDC or other applicable public health authorities.

In the early days of the COVID-19 crisis, employers relied on the EEOC’s SARS-era guidance (from October 2009), which contemplated a relaxed set of employment rules during a pandemic. Once COVID-19 was recognized as a pandemic, employers took comfort in their ability to conduct temperature checks—ordinarily a prohibited medical exam under the ADA—and to exclude sick employees from the workplace. But many questions remained.

On March 21, 2020, the EEOC revised its 2009 guidance specifically for COVID-related concerns, and it has also published a series of evolving technical assistance questions and answers (FAQs). Most recently, the EEOC updated its FAQs to provide guidance on issues employers may face as they re-open and permit their employees to return to the workplace following what has been, for most employers, a period of a mandated shift to telework, furloughs, or other leave, due to state and local stay-at-home orders.

New Guidance re Mandatory Employee Testing

The EEOC has now affirmed that employers are permitted to “administer” COVID-19 virology tests to determine whether employees are currently infected before allowing employees to return to work. This guidance is issued based on the principle that mandatory medical tests of employees must be “job related and consistent with business necessity.” In light of the ongoing pandemic, this standard is met because individuals who test positive for the virus pose a “direct threat” to the health and wellbeing of others. Employers should review guidance from the U.S. Food and Drug Administration (FDA) regarding safe and accurate testing and ensure testing procedures are subject to all safety, confidentiality, and accuracy standards, including OSHA and HIPAA requirements. Yet, questions persist as to how employers should administer such testing, what (if any) medical personnel are required or advisable, and what employers should do if testing kits are not available to them. Testing may be in addition to temperature checks; the EEOC Guidance clarified in March that “employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.”

It is also critical to remember that the EEOC’s relaxed guidelines regarding medical examinations and inquiries relate solely to COVID-19-related symptoms, monitoring and diagnoses—employers must continue to follow the more stringent EEOC guidelines for all other medical inquiries.

Reasonable Accommodations for Employees Returning to Work

As has been emphasized from the start of the COVID-19 crisis, employers must continue to follow all CDC and other public health agency recommendations. This is critical when allowing employers to return to work. Although employers may require employees to wear protective gear and observe infection control practices when they return to work, they must still accommodate employees who need reasonable accommodations for disability or religious purposes (e.g., non-latex gloves, modified face masks for individuals who communicate with individuals who rely on lip reading, etc.) unless such accommodations would pose an undue hardship. Some employees with disabilities that do not ordinarily require an accommodation but that place them a heightened risk of severe complications from COVID-19—such as diabetes—may request the accommodation of continued telework.

Note that the EEOC Guidance states that the ADA prohibits employers from asking employees who do not have COVID-19 symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to complications. Under the Guidance, if an employee voluntarily discloses (without a disability-related inquiry) that the employee has a specific medical condition or disability that puts the employee at heightened risk of severe complications, the employer must keep this information confidential—but should consider it in evaluating any accommodation request.

Engaging in the Interactive Process with Employees During the COVID-19 Crisis

Where job accommodations are sought, the rules for the “interactive process” are not relaxed. Employees may request accommodations for conditions unrelated to COVID-19, in accordance with standard processes, including seeking information about what limitation(s) an employee is facing, how the requested accommodation will alleviate the limitation(s), whether other accommodations could also address the limitation(s), and whether the employee will be able to perform all essential functions of the position with the requested (or alternative) accommodation. The EEOC also recognizes that, given the current state of emergency under which most employers are operating, an employer may choose to modify or forgo the interactive process and grant a requested accommodation on a temporary basis, to be reevaluated at some point in the future. Employers who choose to modify their normal interactive process should do so cautiously, making sure that they are clear that this is a temporary and provisional modification due to the current pandemic circumstances and properly documenting their interactions with the employee for their confidential medical file.

The EEOC’s guidance also recognizes that the pandemic may cause certain accommodations to pose an undue hardship that would not have done so under prior circumstances, which could include conducting a needs assessment, obtaining items that need to be delivered or installed, moving employees to temporary assignments, or removing certain marginal functions from an employee’s job duties. The guidance suggests that financial burden or cost of an accommodation may be more of a consideration now than it was pre-pandemic, but cautions that an employer may not flatly reject “any accommodation that costs money.”

There are a wide variety of issues that employers must consider as the economy re-opens and we move into the next phase of the COVID-19 crisis. Many of our initial Workplace Coronavirus Considerations that preceded the stay-at-home orders will apply to the reopening stage as well, and risk mitigation remains critical for employers in this dynamic landscape. This information is current as of April 24, 2020. For the most up-to-date information, readers are encouraged to consult the websites identified in this article, or contact legal counsel.

Pillsbury’s experienced, multidisciplinary COVID-19 Task Force is closely monitoring the global threat of COVID-19 and providing real-time advice across industry sectors, drawing on the firm’s capabilities in crisis management, employment law, insurance recovery, real estate, supply chain management, cybersecurity, corporate and contracts law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 (Coronavirus) Resource Center.

Pillsbury clients may obtain advice and strategic input by contacting Paula Weber, Laura Latham, Kimberly Higgins, Andrea Milano, or Julia Judish, who can also coordinate involvement of colleagues on the Pillsbury Crisis Management Team and COVID-19 Taskforce.