EEOC ISSUES IMPORTANT NEW GUIDANCE FOR EMPLOYERS ON DISCRIMINATION IN THE WORKPLACE IN THE COVID-19 ERA

By SHLC on April 7, 2020 in Uncategorized
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The Equal Employment Opportunity Commission (EEOC) is attempting to clarify how workplace anti-discrimination laws are to be applied in light of the COVID-19 pandemic and the recommendations of the CDC and WHO. In the EEOC’s March 27, 2020 webinar, Carol Miaskoff, Associate Legal Counsel for the EEOC, and her colleagues explained that the current crisis permits employers to ask questions and gather information that otherwise would be prohibited. (See https://www.eeoc.gov/coronavirus/webinar_transcript.cfm). They also explained that despite the relaxation of some rules during the pandemic, discrimination based on age, disability, gender and national origin remain strictly prohibited. Some of the biggest take-aways from the EEOC webinar include:

Employee’s Right to Medical Privacy and the ADA in the Age of COVID-19

  • Employers may ask all employees who will be physically entering a workplace if they have COVID-19, symptoms of COVID-19, or have been tested for COVID-19. They may also take employee’s temperatures. An employer may then exclude employees with COVID-19 or its symptoms (such as cough, fever, difficulty breathing, etc.) from the workplace because their presence would pose a direct threat to health or safety. However, employers generally are not allowed to ask these questions of employees who are teleworking because they do not pose a risk of contagion to co-workers.
  • Employers may also take an employee’s temperature and/or require a doctor’s note before an employee returns to work after having been sick without violating the Americans with Disabilities Act (ADA). (See https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm.) However, some state laws may prohibit asking for a doctor’s note when an employee uses certain types of leave, so it is important to review your state’s leave laws and consult with a legal professional in your state.
  • In a surprising but safety-conscious turn, the EEOC currently advises that the ADA allows an employer to bar an employee’s physical presence in the workplace if the employee refuses to answer questions about whether s/he has COVID-19, COVID-19 symptoms, or has been tested for COVID-19, or if the employee refuses to have his/her temperature taken.
  • Nonetheless, if the employer singles out particular employees for questioning or testing, the employer must have a “reasonable belief based on objective evidence” that the chosen employees might have the disease. For example, if an employee has a persistent, hacking cough, the employer could ask about the cough, whether the employee has been to a doctor, and whether the employee knows if s/he has or might have COVID-19.
  • The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members, even those who have tested positive for COVID-19. However, asking an employee if s/he had contact with anyone who has tested positive or is exhibiting symptoms of COVID-19 is “more sound” according to the EEOC.
  • While the ADA requires that employers keep all medical information about employees confidential, it does not prevent the discrete dissemination of employees’ COVID-19 diagnoses or symptoms to appropriate members of management so that they can take actions consistent with guidance from the CDC and other public health authorities. The employee’s identity should be disclosed only on a “need-to-know” basis.
  • Similarly, a designated representative of the employer may interview the employee diagnosed with COVID-19 to get a list of people with whom the employee may have had contact in the workplace, so that the employer can then notify those who may have come into contact with the employee without disclosing the infected employee’s identity. Remember, the ADA prohibits the broad disclosure of an employee’s medical condition or identity and requires the employer to keep any documentation of medical information in a separate and confidential file to the greatest extent practicable.
  • Nonetheless, the ADA permits notification of employee data to public health authorities because COVID-19 currently poses a direct threat both to individuals with the disease and those with whom they come in contact. The ADA does not preempt state, county, or local laws that are designed to protect the public health from a direct threat like that posed by COVID-19.

Discrimination on the Basis of COVID-19 Risk Factors (Including Age, Pregnancy, and Underlying Condition)

  • Under the Age Discrimination in Employment Act (ADEA), which prohibits employment discrimination against workers aged 40 and over, employers may not ban workers over 65 from the workplace or requiring them to telework due to their age, despite the CDC’s conclusion that such employees are at higher risk for complications from COVID-19.
  • Similarly, the employer is not required to grant a request to telework from an employee who is 65 years old or older since the ADEA does not have an accommodation provision. However, if an employer is allowing other comparable workers to telework, it should give the same opportunity to older employees.
  • Employers cannot require pregnant employees to take leave or telework or otherwise ban them from the workplace just because they may be at higher risk for COVID-19 related complications. Such conduct is discriminatory. However, if a pregnant employee is disabled by her pregnancy, she may be entitled under the ADA to a leave or to telework as a reasonable accommodation of her pregnancy-related disability. Also, a pregnant worker should not be denied a requested leave or accommodation that the employer provides to other employees for other ADA protected reasons.
  • It is unclear at this time whether COVID-19 is or could be a disability under the ADA. Nonetheless, an employer may ban an employee with the disease from entering the workplace at this time because of the direct threat of contagion. Employers should continue to take actions involving persons with COVID-19, or who may have COVID-19, based on the most current guidance available from the CDC and other public health authorities.

Heightened Risk Factors and Reasonable Accommodation under the ADA

  • The CDC has identified a number of medical conditions, including, chronic lung disease and serious heart conditions, which may put individuals at higher risk of serious complications from COVID-19. These underlying conditions may be a disability as defined by the ADA. If an employee with such an underlying condition requests a leave or to telework, it can trigger the employer’s requirement to engage in the interactive process to find and provide a reasonable accommodation. Under these circumstances, the employer may require a doctor’s note or other certification verifying that the employee has a disability and needs the requested accommodation to avoid the heightened risk. Similarly, an employee may request an accommodation because a current disability is exacerbated by COVID-19 or the current situation, triggering the employer’s need to engage in the interactive process and provide a reasonable accommodation for the employee.
  • As always, an employer can consider whether an accommodation would pose an undue hardship, meaning the employer may assess whether a specific form of accommodation would pose significant expense or significant difficulty. Employers need not provide accommodations that are unreasonable.
  • For employers seeking documentation from a health care provider to support the employee’s request for accommodation, the EEOC reminds them that because of the health crisis, many doctors may have difficulty responding quickly. The EEOC suggests that employers consider other ways to verify the existence of a disability such as health insurance records or prescriptions. The employer should consider providing the accommodation on a temporary basis while waiting for documentation, especially where an at-risk employee requests a leave or to telework.
  • Employees are not entitled under the ADA to a reasonable accommodation for a family member’s or housemate’s disability. The ADA only protects the employee’s right to reasonable accommodation for his or her own disability.  However, employers should understand that employees may be entitled to take sick leave to care for an ill family member under the Families First Coronavirus Response Act (FFCRA) and California’s Paid Sick Leave Law, or family leave under the Family and Medical Leave Act (FMLA) or its state equivalents such as the California Family Rights Act (CFRA).
  • Employers should keep in mind that undue hardship considerations might be different when evaluating a request for accommodation while teleworking rather than when working in the workplace. A reasonable accommodation that is feasible in the workplace might pose an undue hardship if the employee is teleworking.
  • The EEOC reminds everyone that, under the current circumstances, employers and employees should try to be as flexible and creative as possible. There may be accommodations that are not ideal but will meet an employee’s needs, at least on a short-term basis. Interim accommodations might be appropriate while an employer discusses a request with the employee or is waiting for additional information. In addition, the EEOC expressly considers the current COVID-19 crisis to be an extenuating circumstance that can justify deviation from many of the usual rules, including adherence to normal timelines when processing requests for and providing reasonable accommodations.

Other Guidance

Much of the EEOC’s analysis relies on the determination that the COVID-19 pandemic is a “direct threat,” under the ADA, i.e. a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation. Such a direct threat allows employers to engage in protective conduct that might otherwise beprohibited by the ADA.  As the EEOC published at https://www.eeoc.gov/facts/pandemic_flu.html,

Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard.  The CDC and public health authorities have acknowledged community spread of COVID-19 in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings.  In addition, numerous state and local authorities have issued closure orders for businesses, entertainment and sport venues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion.  These facts manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.  At such time as the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists. 

For more information from the EEOC, see, also https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

https://www.eeoc.gov/eeoc/newsroom/wysk/national_origin_race_discrimination_covid-19.cfm

Employers Must Also Consider State Law

Employers generally must comply with both federal and state laws.  California’s Department of Fair Employment and Housing (DFEH) and Nevada’s Equal Rights Commission (NERC) have and/or may issue their own guidelines. Thus employers need to check the rules and guidelines governing the states where they do business. For information from the California Department of Fair Employment and Housing, see https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf.

SHLC attorneys are available to be retained for private consultation and advice.  You can also find information on other COVID-19 employment issues at the SHLC Coronavirus Pandemic Employer Resources page, at https://www.suttonhague.com/coronavirus/.  For a schedule of our upcoming webinars, visit https://www.suttonhague.com/events.  We also have downloadable webinars on this and related topics at our Calnevalaw.com website.  Regarding any tax issues, including payroll taxes, employers are strongly advised to consult with a qualified tax CPA.

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