On March 27, 2020, the Equal Employment Opportunity Commission (EEOC) posted a pre-recorded webinar called “Ask the EEOC” on its website. The purpose of the webinar was to answer COVID-19 workplace questions arising under the federal employment discrimination laws the EEOC enforces. Prior to recording the webinar, and in an effort to ensure that the information provided was relevant to common COVID-19 workplace concerns, the EEOC welcomed public submission of questions. The EEOC reported that “almost 500” questions were submitted. Reed Smith submitted 21 questions, all of which had subparts, designed to gain insight on practical questions likely to be of interest to our employer client base. In the 42-minute webinar, 22 questions were answered by three EEOC representatives: Carol Miaskoff, Associate Legal Counsel of EEOC; Sharon Rennert, Senior Attorney Advisor for ADA and GINA; and Jeanne Goldberg, Acting Assistant Legal Counsel for ADA and GINA.
For the most part, the ground covered during the webinar is familiar to compliance-minded employers generally aware of their EEO obligations. A few questions posed and answered by the EEOC generated useful practical guidance. But one simply worded and powerful question – Is COVID-19 a disability under the ADA? – prompted a surprising “that is unclear at this time” answer from the EEOC.
For purposes of this summary, we selected the five questions posed and answered by the EEOC that we believe are of most interest to employers. Those five are Questions 2, 4, 8, 16, and 21. For each of the five, we provide below the question as posed by the EEOC, a summary of its answer during the webinar, and our commentary.
Q2. What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature, or refuses to answer questions about whether he has COVID-19, or has symptoms associated with COVID-19, or has been tested for COVID-19?
Answer provided by EEOC:
The ADA allows an employer to bar an employee from being physically present in the workplace based on refusal to have body temperature taken or answer COVID-19 questions. As an alternative to immediately barring access to the workplace, and in an effort to gain employee cooperation, the EEOC suggests asking the reason for the employee’s refusal to cooperate. The EEOC notes that employees may be reluctant to disclose personal medical information due to concerns that such information may be widely spread throughout the workplace. If an employee refuses to cooperate with temperature checks or disclosure about COVID-19 symptoms or diagnosis, the EEOC recommends that the employer provide reassurance that broad disclosure of personal medical information in the workplace is prohibited by the ADA.
Reed Smith commentary to Q2:
The EEOC’s answer advises employers to “bar” an employee’s access to the workplace if the employee refuses to have their temperature taken or to answer COVID-19 questions. The EEOC did not, however, address logical questions that would arise after the employee does not cooperate, such as whether such a bar to access could permissibly be administered in the form of disciplinary action for noncompliance or insubordination. Presumably, such follow-along adverse action, such as a temporary suspension without pay, would be appropriate – yet the EEOC remains silent on this issue. Additionally, given the commonplace nature of the symptoms – a persistent cough, for example – this leads to the conclusion that an employer may legally deny a worker’s access to the workplace for symptoms also consistent with seasonal allergies or the common cold. Notably, the EEOC did not address this question in the context of a unionized workforce, where careful consultation of the collective bargaining agreement would be prudent before taking any adverse action.
Q4. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?
Answer provided by EEOC:
The EEOC, in consideration of the limited scope of such a question and in light of prohibitions against asking employees medical questions about family members under the Genetic Information Nondiscrimination Act (GINA), stated that a better question to ask is whether an individual has had contact with anyone known by the employee to have been diagnosed with, or had symptoms of, COVID-19. By broadening the phrasing of the question in this manner, employers may gain a better understanding of the potential risk of that employee’s exposure, while simultaneously mitigating the risk of asking questions prohibited by GINA.
Reed Smith commentary to Q4:
This is a rare example of the EEOC broadening the scope of what an employer might be inclined to do or ask. Rather than limiting COVID-19 questioning of an employee to questions about family members, the EEOC counsels asking employees about contact with anyone known to the employee to have COVID-19 symptoms – which often necessarily includes family members – without specifically referencing family so as to maintain compliance with GINA.
Q8. Employers may be concerned that telling employees that “someone at this location” or “someone on the 4th Floor” has COVID-19 may not provide sufficient information to allow people to know if they should take further steps to protect themselves or others. Therefore, can employers tell the workforce the name of the employee with COVID-19?
Answer provided by EEOC:
The EEOC responded that the ADA does not permit, nor does the CDC recommend, such a broad disclosure of the medical condition of a specific employee. Confidentiality of an individual’s diagnosis with COVID-19 remains paramount, despite well-meaning questions posed by employees who are concerned regarding their own exposure.
Reed smith commentary to Q8:
The EEOC took several opportunities throughout the webinar to state its position that employers should never reveal the name of an employee known or suspected to have COVID-19, except to appropriate government health officials. This question-and-answer was the most direct example. For an employer to act in compliance with the EEOC’s position, even if a coworker specifically asks about the employee at issue by name, the employer should not confirm the identity of the employee known or suspected to have COVID-19.
In a similar vein, the EEOC acknowledged during the webinar that, particularly for small employers, coworkers might be able to figure out who the employee is. Regardless, employers are still prohibited from confirming or revealing the employee’s identity.
The EEOC neglected to address if or how employers should inform customers or outside guests who had contact with an employee known or suspected to have COVID-19. Presumably, the same confidentiality requirements apply, and the employee should not be identified by name. Questions remain, however, as to whether providing such notice is permissible when doing so inevitably reveals the employee’s identity, such as when a single employee is the only individual from a company with whom a customer or outside guest has had contact.
Q16. Is COVID-19 a disability under the ADA?
Answer provided by the EEOC:
The EEOC acknowledged that this was a question posed by many who submitted inquiries in advance of the recorded webinar. The response provided, couched in caveats and uncertainty, was essentially “we don’t know yet.” As this is a new virus that medical experts are still learning about, the EEOC’s position at this time is that whether or not COVID-19 is, or even could be, a disability under the ADA is uncertain. Even if it is eventually determined that COVID-19 is or could be a disability under the ADA, the EEOC reiterates that an employer may still bar an employee with COVID-19 from the workplace at this time because such an employee poses a direct threat in the workplace. A “direct threat” means that an individual’s medical condition poses a significant risk of harm to the employee or others.
Reed Smith commentary to Q16:
The EEOC’s position on this simply worded, powerful, and apparently common question is surprising, and perhaps alarming. As of the date of the “Ask the EEOC” webinar, according to statistics published by Johns Hopkins University, the global incidence of confirmed cases of this highly contagious disease continues to spike exponentially. Entire countries have been shut down. Healthcare leaders in some areas are making unfathomable decisions about life-sustaining medical care. The global economy is suffering. The U.S. government, acting swiftly, has authorized relief in the trillions of dollars. The U.S. leads the world with over 100,000 confirmed cases. Many Americans who will never have a COVID-19 symptom will nonetheless suffer devastating personal consequences as a result of the disease and efforts undertaken to prevent its spread. And yet the EEOC, when asked if those with COVID-19 have a disability, responds that it is “uncertain at this time.”
The EEOC is clearly proceeding with caution, likely to avoid the need to back-peddle under specific circumstances or perhaps even at such time as a vaccine is readily available. The varying degrees to which a diagnosed individual’s health suffers as a result of the virus likely adds an additional layer of complication for the EEOC. Some experience common flu-like symptoms, albeit often with greater severity, which subside in due time with or without treatment. Others, however, end up on ventilators. Many die. A blanket confirmation that COVID-19, in and of itself, is a “disability” under the ADA is a position that the EEOC is unlikely to take at this time.
The ultimate trajectory of this virus remains to be seen. The EEOC is expending time and resources addressing issues that arise for employers, particularly under the ADA. The standing caveat throughout the webinar that none of the EEOC’s responses to questions pertaining to the ADA are definitive at this time, coupled with the response provided to this particular question, both underscore the uncertain times and unchartered territory in which employers are now suddenly immersed.
Q21. Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. After such public health measures are no longer necessary, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who wishes to continue this arrangement?
Answer provided by the EEOC:
Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If an individual has a disability-related limitation that can be effectively addressed with a form of accommodation other than telework, the EEOC confirmed that the employer is not required to provide telework as an accommodation. Additionally, the EEOC noted that some employers may, out of necessity in the current circumstances arising as a result of the COVID-19 pandemic, be permitting telework for its employees even though doing so eliminates or excuses employees from performing some of the usual essential functions of their positions. The fact that an employer temporarily excused performance of one or more essential functions of their position during the COVID-19 crisis does not mean that an employee’s essential job functions have been permanently modified. It also does not mean that telework is a feasible accommodation under normal circumstances, not posing an undue hardship on employers. These are fact-specific determinations. Furthermore, the ADA never requires an employer to eliminate an essential function of an employee’s position as an accommodation and the employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties (including, if applicable, reporting for work at an identified workplace location) after the immediate crisis has passed.
Reed Smith commentary to Q21:
This question goes to a common “floodgate opening” concern shared by many employers. The concern is that the remote-work status of many workers, likely to be sustained for weeks if not months, will become the new normal mindset, and some workers will want to continue that status in the now hard-to-imagine post-pandemic world. The EEOC’s answer to this question is helpful to employers. Remote work arrangements put in place now will not necessarily lock employers into sustaining such arrangements when the novel coronavirus subsides. When the workplace changes yet again, as business reopens and economies recover, employers will not be required to use these extenuating circumstances as a frame of reference for what is or is not permissible during its normal operations.
It is also helpful to employers that the EEOC acknowledges the fact that many employees’ usual “essential job functions” have now been modified out of necessity. Indeed, a business’ essential services have, in many instances, been dramatically impacted by COVID-19. Although an employee’s essential functions may now be temporarily modified, the EEOC confirms that this does not set a precedent for an employee’s expectations moving forward.