The EEOC recently posted updated guidance about employers’ obligations related to COVID, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Like the EEOC, I’ve been getting a lot of questions from people trying to understand how to navigate work in these times. Here are some common questions and answers drawn from this new guidance and my experience:
What kinds of testing and information about COVID can an employer require?
- The ADA generally requires that medical tests and questions at work be “job related and consistent with business necessity.”[1]
- If people are going to a job site, employers can:
- Require COVID tests. The EEOC guidance says: “Testing administered by employers consistent with current CDC guidance will meet the ADA’s ‘business necessity’ standard.”
- Ask about symptoms, diagnoses, and contact with COVID, including personal travel locations.
- Do contact tracing when employees may have been exposed to an infected co-worker.
- These steps are limited to reasonably reliable measures of COVID. Employers will probably have some leeway but not free range.
When do employees have the right to work remotely?
- An employee is entitled to “reasonable accommodations” for disabilities (such as, usually, medical conditions that result in higher risk for COVID) under the ADA.
- The employee must do the “essential job functions.”[2] It is now clear—contrary to some earlier case law—that many jobs can be done remotely.
- However, physically being at work may be essential after reopening—even if people have been teleworking during a shutdown period. It depends on the situation.
- Other accommodations (like protective equipment or social distancing) may be sufficient. Employees and employers must work together to figure out what makes sense—the ADA interactive process.
- Federal law, the Families First Coronavirus Response Act, also gives many employees the right to stay home and draw some pay if they are medically quarantined or have childcare responsibilities.
Can an employer ask about medical conditions that put people at higher risk?
- An employer is not usually allowed to ask medical questions that are not related to the ability to do the job.
- Employees are free to make their own decisions about medical risk at work.
- In rare instances, employers may exclude workers who are a “direct threat” to themselves or others.[3] Direct threat requires a serious and imminent risk of substantial harm;[4] many COVID scenarios will not qualify.
What privacy rights do employees have?
- Employers must keep COVID information confidential, separate from general personnel files, like any other medical records.
- Employers cannot tell coworkers someone is out because of COVID.
- Employers should try to protect privacy when contact tracing and not give names.
- However, employers probably can let workers know about potential exposure even if the infected person’s identity will be obvious.
One lawyerly caveat: The ultimate question is what the law says, not how the EEOC interprets it. Courts are sometimes, but not always, persuaded by EEOC guidance.[5] Also, local laws may be more protective of employees. The key is for everyone to be reasonable about staying safe, taking care of the workforce, and getting the job done.
Resources
[1] 42 U.S. Code § 12112(d).
[2] 42 U.S. Code § 12112(b)(5)(a).
[3] Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002).
[4] See 29 C.F.R. §1630.2(r).
[5] See Eric Dreiband and Blake Pulliam, Deference to EEOC Rulemaking and Sub-Regulatory Guidance: A Flip of the Coin?, 32 ABA J. Lab. & Empl. L. 93 (Fall 2016).
ADA Update 