These are unprecedented times.  The COVID-19 pandemic has caused us to rethink, retool, recalibrate and reconsider our options – all for the sake of keeping us safe.  Let’s consider some of the equal employment opportunity (EEO) and the Americans with Disabilities Act (ADA) considerations.

Americans with Disabilities Act (ADA)

The Equal Employment Opportunity Commission (EEOC) has issued guidelines for employers to follow during the pandemic, which are exceptions to the rules.  For example, generally, employers would not be allowed to measure an employee’s body temperature, as it is considered a medical examination.  During this pandemic, however, employers are allowed to conduct such wellness checks.  Employers are also allowed to directly ask their employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat.  The information collected is subject to ADA confidentiality requirements.

We know that some people may be more at risk, due to underlying medical conditions.  The EEOC has reiterated that employers are still prohibited from asking an employee to disclose whether they have a medical condition that the Center for Disease Control (CDC) says could make them especially vulnerable to COVID-19.  However, if an employee voluntarily discloses that they have a specific medical condition or disability that puts the employee at increased risk, the employer may ask the employee to describe the type of assistance that may be needed (i.e. telework or leave for a medical appointment).  Note that if the pandemic becomes more severe, employers may be allowed to make disability-related inquiries or require medical exams of asymptomatic employees to identify those at higher risk.  Please consult with legal counsel before engaging in such inquiries to confirm that such exceptions are in place.

During the pandemic, employers are allowed to do the following:

  • Encourage/require telework;
  • Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal; and
  • Require employees to wear personal protective equipment.

Note that if an employee with a disability needs a related reasonable accommodation under the ADA (i.e. non-latex gloves), the employer should provide such accommodations, absent undue hardship.

The foregoing guidelines, as well as related topics, are discussed in detail at: https://www.eeoc.gov/facts/pandemic_flu.html

One topic that is not discussed in the EEOC’s guidance is the fact that some underlying medical conditions do not rise to the level of a disability under the ADA.  Are employers still required to provide reasonable accommodations for employees making such a request, even though their underlying medical condition puts them at greater risk for contracting COVID-19?  Technically, no.  But do you really want to be the employer defending that lawsuit?

Equal Employment Opportunity

Race/National Origin Discrimination

Reports indicate that discrimination against Asians, particularly people from China, is on the rise, as a result of the COVID-19 crisis.  It is a best practice to remind employees of your nondiscrimination policy and underscore that such discrimination, as well as harassment, will not be tolerated.  The EEOC’s statement on this topic is here:  https://www.eeoc.gov/eeoc/newsroom/wysk/national_origin_race_discrimination_covid-19.cfm

Age Discrimination

The EEOC has not identified age discrimination as a potential problem with respect to the COVID-19 pandemic, but it seems likely that the incidence of age discrimination complaints are likely to rise during this pandemic.  The CDC has identified that increased age can be a significant factor in the impact of contraction of COVID-19.  Accordingly, employers may be more reluctant to hire workers in the protected age group (40 years and older).  Employers may also be more likely to send older workers home, while younger workers are allowed to come to work.  Such practices would likely be considered unlawful discrimination.

EEOC Complaint Processing

The EEOC has modified its process for handling EEO complaints, in part due to limited access to the US Mail.  The revisions can be reviewed at:   https://www.eeoc.gov/coronavirus/federal_eeo_processing.cfm

Final Notes

The EEOC will likely continue to revise its guidance as the COVID-19 pandemic evolves.  Likewise, guidance from public health authorities is likely to change, so employers should continue to follow the most current information on maintaining workplace safety.  For comprehensive technical assistance from the EEOC see:  https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

 Article written by Marilynn Schuyler, Schuyler Affirmative Action Practice, in association with the Biddle Consulting Group Institute.

Please note: Nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization’s particular circumstances. All original materials copyright © Schuyler Affirmative Action Practice 2020.