By Joseph S. Brown, Esq.
In response to the COVID-19 pandemic, many states have imposed stay-at-home orders and other restrictions that will likely be in place for several more weeks – currently restrictions on non-essential businesses are in place until May 15th for New Yorkers. As those orders and restrictions are modified and lifted, employers will encounter new legal questions as the nation returns to “normal” business operations.
Last Friday, the U.S. Equal Opportunity Employment Commission (EEOC) weighed in on two major return to work issues – employee screening and accommodation requests – with updated guidance for employers. The guidance is available here.
The EEOC tackles the question of what steps can employers take, consistent with the Americans with Disabilities Act (ADA), to screen employees for COVID-19 when entering the workplace.
By way of background, the ADA permits employers to make disability-related inquiries and conduct if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. The EEOC advises that:
Direct threat is to be determined based on the best available objective medical evidence. The guidance from [the Centers for Disease Control and Prevention] (CDC) or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time. For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace.
The EEOC, as an example, refers to recent CDC guidelines for when an essential employer should permit a critical infrastructure employee to return to work after a coronavirus exposure. Those guidelines were summarized in a previous alert by Hurwitz & Fine, available here.
Finally, the EEOC cautions employers to “make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.” In other words, employers should try to ask the same questions or take the temperature of everyone who returns to the office to work (or use objective criteria), not just a select few.
Accommodations for Protective Gear
An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols). But must an employer grant an employee request for accommodations due to a need for modified protective gear?
The EEOC offers the following advice:
[W]here an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII.
In sum, as the nation makes plans for returning to work, it is imperative for employers to be familiar with the latest guidance from the CDC and other public health authorities. The EEOC advises that such guidance is the best objective medical evidence that can support an employer’s decision to make disability-related inquiries and conduct medical exams. Employers should also be prepared to carefully analyze an employer’s request for accommodation from protective gear requirements.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com