By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On September 8, 2020, the EEOC updated its Technical Assistance Q&A webpage to address 18 new questions regarding the application of the Americans With Disabilities Act (“ADA”), the Rehabilitation Act, and other EEO laws to employers continuing to face the struggles of the COVID-19 pandemic. The latest guidance addresses issues such as COVID-19 testing and screening, confidentiality, and reasonable accommodations. The latest guidance is a critical “must read” for all employers with employees in the workplace or providing alternative work arrangements.  

Latest EEOC COVID-19 Guidance On COVID-19 Screening And Testing

While much of the EEOC’s latest guidance was adapted from the Commission’s March 27, 2020 webinar (a summary of which we provided here in an earlier blog post), the EEOC’s latest guidance provides some additional clarification as to the intersection of the ADA and the CDC’s guidance on COVID-19 screening. Specifically, the ADA requires that any mandatory testing of employees be “job related and consistent with business necessity.” In light of the COVID-19 pandemic, the EEOC has clarified that an employer may administer COVID-19 testing to employees before permitting them to enter the workplace to determine if they pose a direct threat to others in the workplace.

Consistent with the EEOC’s previous guidance in the pandemic, the Commission has reiterated that the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate, and that testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.

Additionally, the updated guidance states that employers may screen or test a particular employee only if the employer has a reasonable belief based on objective evidence that the individual may have COVID-19. Further, the guidance reminds employers that they cannot ask employees whether they have family members with COVID-19 or who are suffering symptoms of COVID-19, as such questions are prohibited by the Genetic Information Nondiscrimination Act (“GINA”).

Confidentiality Considerations Of COVID-19

The Commission’s newest guidance also addresses questions regarding the confidentiality obligations of employers under the ADA while addressing COVID issues in the workplace. Notably, the guidance provides that while the ADA requires that an employer keep all medical information about employees confidential, including whether an employee has symptoms of, or a diagnosis of, COVID-19, managers are not prevented from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC. However, the EEOC’s guidance emphasizes that employers should take as many steps as possible to limit the disclosure of the name of the employee who has been diagnosed or who has symptoms of COVID.

Reasonable Accommodations In Light Of COVID-19

The EEOC’s guidance further addresses issues related to reasonable accommodations, particularly whether an employer providing work from home arrangements to some employees due to state or local shutdown orders must provide similar accommodations for those employees that the employer provides to those still in the workplace. The updated guidance provides that if such a request is made, the employer and employee should discuss the accommodation and whether a different accommodation could be warranted in the home environment. Further, the guidance states that the undue hardship considerations might be different relative to a home environment as opposed to the workplace, as a reasonable accommodation that does not pose an undue hardship in the workplace could pose one when considering circumstances such as teleworking.

Implications For Employers

The EEOC’s new guidance is the latest installment in the EEOC’s ongoing effort to provide clarity for employers on the application of the ADA, the Rehabilitation Act, and other EEO laws to COVID-19-related issues. Employers dealing with these issues should carefully read the newest guidance as well as details on the EEOC’s other recent changes, all of which have been tracked here.