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The EEOC Provides Further Guidance on Employer Duties

The Equal Employment Opportunity Commission has released technical guidance in addition to what was most recently released on April 9. Today, the EEOC added 10 questions and answers, several of which involve guidance on employees returning to work. We anticipate the EEOC will continue to periodically update this guidance. The full technical guidance can be found here.

Several points of significance:

D.5 & 6 Employers may ask for medical documentation. If an employee requests an accommodation for a medical condition, the employer may still ask questions of the employee or request medical documentation to determine whether the employee has a “disability” under the ADA and determine whether that disability necessitates an accommodation. The employer may still engage in the interactive process, and ask such questions as:

(1) how the disability creates a limitation;

(2) how the requested accommodation will effectively address the limitation;

(3) whether another form of accommodation could effectively address the issue; and

(4) how the proposed accommodation will enable the employee to continue performing the “essential functions” of the position.

D.7 Adapting the interactive process due to the pandemic. Given the circumstances surrounding the pandemic, employers may choose to shorten or forgo the interactive process and grant the employee’s request. Employer may wish to adapt the interactive process and devise end dates for the accommodation to suit changing circumstances based upon government orders and public health directives. Employers may also place a time limit on the accommodation or even provide the requested accommodation on an interim or trial basis, with an end date, while awaiting medical documentation.

D.8 Pre-return interactive process permitted. Employers may ask employees if they will need a reasonable accommodation upon return to the workplace, once the workplace re-opens. Employers may begin the interactive process prior to the workplace reopening.

D.9, 10 & 11 Undue hardship. The EEOC recognizes that certain accommodations may now present an “undue hardship” to an employer that would not have posed an undue hardship prior to the pandemic. An employer may consider whether current circumstances create “significant difficulty” in providing certain accommodations, considering the particular job and workplace. For example, it may be significantly more difficult to provide employees with temporary assignments, remove marginal functions, or readily hire temporary workers for specialized positions. The employer and employee should work together to determine if there is an alternative that does not pose an undue hardship on the employer. Prior to the pandemic, the EEOC did not consider that many accommodations posed a significant expense to an employer when compared to the overall budget and resources. Now, however, the EEOC considers the sudden loss of some or all of an employer’s income stream a relevant consideration. Employers may not simply reject accommodations that cost money, but they may weigh the cost of an accommodation against the current budget when considering constraints created by the pandemic.

E.2 Employers should remind employees about anti-harassment and discrimination. Upon return to the workplace, employers may remind employees that it is illegal to harass or discriminate against co-workers based on race, national origin, color, sex, religion, age, disability, or genetic information. The EEOC notes that it may be helpful to remind managers and supervisors of their roles in watching for, stopping, and reporting harassment or discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

G.1 Return to work – workplace screening. Once stay-at-home orders and other restrictions are modified or lifted, if employers desire to screen employees for COVID-19 when entering the workplace, they can do so under the ADA as long as the screening is consistent with advice from the CDC and public health authorities for that type of workplace at the time. This may include continuing to take temperatures and questioning employees about symptoms (or requiring self-reporting) for those entering the workplace. Additionally, the CDC recently posted information on return to work by certain types of critical workers, which can be found here. (Add link: https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html

G.2 Personal protective equipment and infection control practices in the workplace. An employer may require employees to wear protective gear like masks and gloves, and observe infection control practices like social distancing and handwashing upon return to work. However, if an employee requests an accommodation relating to personal protective equipment (like non-latex gloves or masks that provide for lip-reading if an employee is hearing impaired), the employer should discuss the request and provide the modification if feasible and it would not work an undue hardship on the employer. The same holds true for religious accommodation requests. An example of this would be modified protective equipment due to religious garb.

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