Since mid-March, the Equal Employment Opportunity Commission has been providing regular updates to address questions employers have about their responsibilities under the Americans with Disabilities Act, the Rehabilitation Act and other EEO laws during the COVID-19 pandemic.
The EEOC’s online advice covers everything from furloughs and layoffs to the reopening of workplaces. Nearly a dozen answers address coronavirus-related requests for accommodations, while others provide tools to fight workplace harassment or discrimination that could arise due to the outbreak.
Employment law attorneys shared some of the most common EEOC-related questions they’ve gotten since the pandemic began as well as some future concerns employers could face as they open back up.
According to the lawyers, one of the hottest topics has been whether an employer can take an employee’s temperature. The answer, according to the EEOC, is yes, though the commission warns not all people with the virus have a fever.
Amy Miletich, of Miletich PC, called the EEOC’s guidance allowing employers to take temperatures “a surprise” and noted the commission has been following the guidelines of the Centers for Disease Control and Prevention and state authorities when it comes to such decisions.
Before COVID-19, measuring an employee’s temperature was “completely unheard of,” Davis Graham and Stubbs partner Brett Painter said. In addition to taking temperatures, the EEOC has also said that during a pandemic, employers can ask workers about any symptoms they have that could be related to the outbreak. For COVID-19, those include fever, chills, cough, shortness of breath and sore throat.
“All of those inquiries and medical information historically would be something that would make employers very nervous,” Painter said.
“That is typically not something that employers would just be able to do under the Americans with Disabilities Act,” said Mark Wiletsky, partner at Holland & Hart. He said “the biggest questions by far” he has faced from employers have dealt with whether they can take temperatures and whether they can ask workers about their symptoms or contact with infected people. While all those are allowed, employers still have to be careful about how they handle that information.
“They do have to treat that information as confidential, just as they would any other medical records involving employees,” Wiletsky said. “If employers are logging that information, tracking that information, it really should not go into anyone’s personnel file. It should not just be put out on the desk.”
While employers can ask about an employee’s potential exposure to the virus, Wiletsky cautioned against prodding employees about how and where they came into contact with the virus. Employers don’t need to know whether a worker’s spouse or child is sick in order to make decisions to protect other employees.
“The sensitivity to making decisions related to protected classes like age, disability and national origin has always been there,” Painter said. “I think what’s different about COVID-19 is that it’s put those issues in the forefront where employers have had to make decisions about what they ask or what they require.”
While many companies have been focused on the immediate concerns of keeping workplaces safe and staying in business, attorneys warned of the potential for discrimination or harassment claims based on national origin, race and other protected characteristics.
Miletich said employers should be “very sensitive with regard to potential harassment claims” during this time. Fear makes people act in ways they otherwise wouldn’t, and that fear shouldn’t be misdirected at individuals, she said, adding that companies need to be explaining that to their employees.
The EEOC has advised employers to remind employees it is against the law to harass or discriminate against coworkers due to their race, national origin, sex, religion, age, disability and other characteristics. It also recommended employers advise supervisors and managers of their roles in watching for, stopping and reporting harassment and discrimination.
The commission has published a set of harassment policy tips for small businesses. They include explaining how employees can report harassment and identifying managers and other personnel to receive complaints. The EEOC also said employers should emphasize that employees who report or participate in a harassment investigation won’t be punished and their confidentiality will be protected as much as possible.
RETURNING TO WORK
Some of the most recent advice the EEOC has posted addresses how employers should handle workers’ eventual return to the workplace. Much of it deals with the types of medical screening and inquiries allowed when deciding whether employees can return to work.
Wiletsky said if employers choose to call back some employees but not others, they’ll need to articulate legitimate non-discriminatory and non-retaliatory reasons for doing so. “For example, if an employer called back a number of younger workers, but not a number of workers who are over 40, that could lead to a potential age discrimination claim,” he said.
But how to deal with employees who ask to keep working from home could end up being a bigger question in the future. Wiletsky said he expects lots of employees will ask to keep working remotely, perhaps because they’re still afraid of becoming infected or they live with someone in a high-risk category. Employers will need to be careful if they decide to honor some of those requests and deny others, since it could give rise to potential discrimination issues.
The pandemic could also lead to a shift in whether people with disabilities should be granted accommodations to work remotely.
In the past, work from home arrangements have not necessarily been considered reasonable accommodations a workplace has to provide under the ADA in many jurisdictions, according to Painter.
“Typically, an employer has a legitimate business interest of having people in the workplace, interacting with coworkers,” he said. “That’s sort of seen as an essential part and an essential function of the job, is being in the chair at the office.”
Employees that might have denied accommodation requests to work remotely in the past could find it harder to justify those decisions in a post-coronavirus world.
“I think what is going to happen in the future is it’s going to be much more difficult for those employers who have gone to a remote working situation for several weeks under COVID-19 to make an argument that it’s really required that somebody come down to the office to do their job functions,” Painter said.
Wiletsky echoed those concerns. “I have felt for years that employers shouldn’t be rejecting those types of requests simply by saying, ‘that’s just not something we do’ or ‘we can’t do that,’” he said. “I think it requires more of an analysis, but even more so when you have so many working remotely now as a result of this pandemic.”
While employers won’t necessarily have to grant those accommodations, Wiletsky said, they will need to go through a “real thoughtful and thorough analysis” before rejecting those requests.
— Jessica Folker