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May 1, 2020

Stroock Special Bulletin

By: Howard S. Lavin, Elizabeth E. DiMichele

The Equal Employment Opportunity Commission (EEOC) has provided updates to its ongoing guidance about employer obligations under federal laws prohibiting discrimination during the novel coronavirus pandemic, most recently on April 23, 2020.  As state and local governments contemplate lifting stay at home orders and employers begin planning for employees to resume onsite work, the EEOC has provided answers to some of the more pressing questions that employers will face as they seek to balance the desire to reopen with the safety of their workforce and the concerns of individual employees. The EEOC Guidance makes clear that employers must also keep up to date with information from the Centers for Disease Control and Prevention (CDC) and other public health agencies as they hone their medical guidance about the nature of COVID-19.

Permitted Actions for Protecting the Workforce

While the Americans with Disabilities Act (ADA) generally prohibits employers from asking disability-related inquiries or conducting medical exams of employees, they may do so when the questions or exams are job-related and consistent with business necessity, including when there is a direct threat to the health of others. Although typically a difficult standard to meet, the EEOC has determined that an employee with COVID-19 poses such a direct threat. Accordingly, during this pandemic, an employer is permitted to screen for COVID-19 symptoms, body temperature, and even require employees to undergo tests for COVID-19 when necessary to exclude infected employees from the workplace.

Screening

Employers may screen employees for all symptoms associated with COVID-19 that have been or may be identified by public health authorities in the future. To date, symptoms identified by public health authorities for which employers may screen include:

  • Fever
  • Cough
  • Shortness of breath or difficulty breathing
  • Sore throat
  • New loss of taste or smell
  • Gastrointestinal issues
  • Headache
  • Chills
  • Muscle pain

Body Temperature

Employers may take employees’ temperature before permitting them to return to work on premises. Although permitted, temperature screening and virus testing come with certain caveats. All testing should be done on a non-discriminatory basis, without regard to any protected characteristic, such as race, age or gender. If temperature scanning is implemented, all employees entering the premises should be subjected to scanning and anyone whose temperature is over 100.3 degrees Fahrenheit should not be permitted to enter the workplace. Employers should follow guidance from public health authorities with respect to establishing an appropriate protocol for temperature scanning, including preferred equipment, such as no touch scanners; hiring or training appropriate personnel to administer scans and maintain equipment while providing them with personal protective equipment (PPE); maintaining social distancing; and providing privacy.

Employers may maintain a log of the information obtained, but it is imperative that such log, like any information collected, be maintained in accordance with legal requirements on a confidential basis and separate from general personnel files.

COVID-19 Testing

The EEOC recently announced that “employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.” Further, the EEOC advised that employers must ensure that any tests used are safe, accurate and reliable with reference to the most up to date guidance from the Food and Drug Administration (FDA), CDC and other public health authorities. It is worth noting that such testing provides only a snapshot in time – revealing only if the person was infected when they were tested – and may provide false positives and false negatives. Testing, therefore, is not a substitute for implementing and enforcing infection control practices, such as social distancing, regular handwashing, and not permitting sick employees, including employees with COVID-19 symptoms, to come to or remain in the workplace.

Further, conducting such testing raises the same issues as body temperature checks, and then some. For example, individuals administering the tests who would ideally be medical professionals, must be provided PPE and appropriate training. Employers should also assess whether there is sufficient laboratory capacity to process tests in a timely manner, and whether such labs have appropriate certification for the type of test the employer is using.

Notably, the EEOC has not addressed the use of antibody testing to date.

Personal Protective Equipment and Infection Control Practices

Employers may require employees to wear PPE, such as a mask and gloves, and observe infection control practices. The EEOC advises, however, that the pandemic does not relieve employers of a duty to provide a reasonable accommodation under the ADA for employees with disabilities or a religious accommodation under Title VII of the Civil Rights Act of 1964. The EEOC provided the examples of non-latex gloves, modified face masks for those who communicate via lip reading, modified gowns for employees who use wheelchairs, and other equipment modifications to permit an employee to wear religious garb. Employers must engage in an interactive process with such employees and provide a reasonable accommodation where doing so would not create an undue hardship on the operation of the employer’s business.

High-Risk Individuals and Reasonable Accommodations

The EEOC provides some guidance to employers as they attempt to reopen safely while being cognizant that certain employees may need additional or different accommodations due to the exigencies of the pandemic. The CDC has identified certain individuals as being at greater risk from COVID-19 than the general public, including individuals over the age of 65 and pregnant women. Nonetheless, employers may not unilaterally withdraw job offers or delay start dates for such individuals because of high-risk status. Rather, employers may consider allowing such employees to telework or mutually agree to postpone the start date.

The EEOC advises employers to be flexible in reaching accommodations for individuals with disabilities, or who are otherwise high risk, to limit contact with others while working or commuting, when possible under the circumstances. The EEOC suggests providing temporary job restructuring to remove marginal job duties, temporary transfers, modifying work schedules or shift assignments, and changes to the work environment, such as installing Plexiglas barriers, or moving or installing furniture to ensure minimum distances between individuals in the workplace. Given the unique and evolving nature of the pandemic and medical guidance associated therewith, the EEOC has approved employers providing temporary or short-term accommodations when appropriate.

The EEOC also recognized that the pandemic has created a situation where an accommodation that may have been reasonable before may impose an undue burden on the employer’s business now. This determination, however, is made on an individualized basis, and employers remain obligated to consider alternative accommodations that do not impose such a burden.

Significantly, the EEOC has advised that employers may initiate the interactive process prior to reopening by asking employees with disabilities to request reasonable accommodations that they believe they may need when the workplace reopens in the future. The EEOC’s guidance confirms that when the need for an accommodation is not obvious or already known, employers may ask questions or require medical documentation as part of the interactive process of determining whether an accommodation is needed, and what type of reasonable accommodation can be provided. Questions should be focused on whether the impairment is a disability and the reason an accommodation is needed, and may include:

  • How the disability creates a limitation;
  • How the requested accommodation will effectively address the limitation;
  • Whether another form of accommodation could effectively address the issue; and
  • How a proposed accommodation will enable the employee to continue performing the essential functions of the position.

While this guidance is helpful, employers are well advised to exercise caution when proactively reaching out to employees to ask about the potential need for an accommodation. Any such communication should be carefully designed to avoid suggesting that any employee is being singled out for differential treatment or is required to disclose a disability in the absence of a need for an accommodation.

Prohibited Harassment

The EEOC guidance also addresses employer obligations to prevent and correct workplace harassment of individuals based on any protected characteristic, including harassment based upon national origin or race. The EEOC suggests that employers:

  • Remind employees that it is against the law to harass or discriminate against individuals based on race, national origin, color, sex, religion, age, disability or genetic information;
  • Advise supervisors and managers of the importance of their obligations to watch for, stop and report harassment and discrimination; and
  • Make clear that it will take immediate action to investigate allegations of any workplace misconduct and take appropriate action.

New York City Human Rights Law

The New York City Commission on Human Rights (NYCCHR), the New York City administrative agency with primary enforcement responsibility for the New York City Human Rights Law (NYCHRL), recently advised that it is adopting the above-described EEOC guidance, explaining that compliance with the EEOC guidance generally will satisfy employers’ obligations with respect to disability protections under the NYCHRL as they relate to COVID-19.

In doing so, the NYCCHR emphasized, among other things, that employers are obligated to provide reasonable accommodations, including to employees who have contracted, are suspected of having been exposed to, or are recovering from COVID-19, unless doing so poses an undue hardship. In addition, the NYCCHR reminded employers that they may be required to provide reasonable accommodations to pregnant employees or those with underlying conditions for whom exposure to COVID-19 may pose a particular risk of complication by for example, allowing them to telework, change their schedules, or provide certain PPE.

Conclusion

Reopening business in the midst of the novel coronavirus pandemic raises myriad issues for employers, not the least of which involve returning employees to onsite work while protecting the health and safety of their workforce, clients, customers and business associates, and complying with applicable labor and employment laws. This task is further complicated by the ever-evolving information provided by the CDC and other public health authorities. Against this background, employers should strive to anticipate issues, stay abreast of the most current information, and seek legal counsel when making decisions that impact the workplace and their employees.

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For More Information:

Howard S. Lavin

Elizabeth E. DiMichele

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome.