All employers soon will be on the front-line leading the battle against the further spread of the deadly COVID-19 virus. On April 17, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued revised Guidance for employers dealing with the COVID-19 pandemic, adding advice for employers when allowing employees back to work.
Permissible Steps to Screen Employees
The EEOC’s Guidance confirms that employers are allowed to make disability-related inquiries and conduct medical examinations if they are job-related and consistent with business necessity. Inquiries and medical examinations are permissible if they are necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.
Deciding what is a direct threat must be based upon the best available objective medical evidence, such as guidance from the Center for Disease Control or other healthcare organizations. For example, employers may take employees’ temperatures, ask questions about symptoms and require self-reporting. However, employers must be careful not to engage in disparate treatment based upon employees being in a protected category such as gender or race.
Personal Protective Equipment
The term Personal Protective Equipment, or “PPE” has been added to everyone’s lexicon in 2020. The EEOC’s Guidance makes it clear that employers can require employees to wear PPE, such as gloves and masks, when returning to work. Employers can also require employees to abide by social distancing and regularly wash their hands.
Reasonable Accommodations
Employers must engage in the interactive process when employees request an accommodation upon returning to work. Employers are not obligated to provide the best accommodation, only a reasonable one. For example, no accommodation is required if it imposes an undue hardship on an employer. The EEOC recognizes in its Guidance that, in certain circumstances, what may not have been an undue hardship prior to COVID-19 may pose one now. The EEOC recognizes that an employer’s loss of income due to the pandemic is relevant to this inquiry.
Certain accommodations are relatively easy. For example, an employee may need non-latex gloves or a different type of gown. Employers also can provide an accommodation on a temporary or trial basis while awaiting receipt of medical documentation from an employee. Employers should also take into consideration an employee’s pre-existing disability, if it places the employee at greater risk during the pandemic.