EEOC Updates Guidance Regarding COVID-19 and Antidiscrimination

On April 17, 2020, the Equal Employment Opportunity Commission ("EEOC") updated its technical assistance for employers, "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws."

In its guidance, the EEOC focuses on return-to-work issues in addition to reasonable accommodation and undue hardship matters due to COVID-19.

The EEOC's guidance notes that as government stay-at-home orders and other restrictions are modified or lifted, employers can take steps consistent with the ADA to screen employees for COVID-19 when entering the workplace.  The Americans with Disabilities Act ("ADA") permits employers to make disability-related inquiries and conduct medical exams if they are job related and consistent with business necessity.  Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. Employers will be compliant with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.  Such screening may include, for example, taking temperatures and asking questions about symptoms (or requiring self-reporting) of all employees entering the workplace.  Employers should ensure that they are not engaging in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

Employers may require employees to wear protective gear (such as masks and gloves) and observe infection control practices (such as regular hand washing and social distancing protocols).  Where an employee with a disability needs a related reasonable accommodation under the ADA (such as non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs) or a religious accommodation under Title VII of the Civil Rights Act (such as modified equipment due to religious garb), the employer should provide the modification or an alternative that is not an undue hardship on the operation of the employer's business under the ADA or Civil Rights Act.

For more information about the EEOC's guidance, please contact CCB Law.