As businesses began planning for employees to return to physical workplaces during and after the COVID-19 pandemic, employers faced questions they had never had to answer before: what could they legally ask employees about their health? Could they require COVID-19 testing or vaccinations? How should they handle requests to remain remote as an accommodation? The Equal Employment Opportunity Commission issued detailed guidance addressing these questions, and the framework it established has lasting relevance for employers managing health-related workplace policies today.
At Mandelbaum Barrett PC, the firm’s employment attorneys counseled businesses throughout New Jersey and New York through the return-to-work period and continue to advise on how the legal principles developed during that time apply to ongoing workplace health and safety policies. This overview covers the core elements of the EEOC’s pandemic guidance and what employers need to understand from it.
What Employers Could Legally Ask and Test
The Americans with Disabilities Act limits employers’ ability to make disability-related inquiries and conduct medical examinations, but those limits are adjusted when health conditions pose a direct threat to the workplace. The EEOC’s pandemic guidance recognized that COVID-19, at its height, satisfied the direct threat standard, which meant employers had broader authority than usual to ask employees about symptoms, require COVID-19 testing before allowing entry to the workplace, and conduct temperature checks as a screening measure.
The EEOC was clear, however, that this expanded authority did not override all ADA protections. Medical information obtained through screening still had to be kept confidential and maintained in separate medical files. Employers who used health screening results for purposes other than workplace safety, or who disclosed medical information to other employees, faced ADA exposure even when the initial screening was lawful.
Disability Accommodation in the Return-to-Work Context
The EEOC’s guidance confirmed that returning employees to the workplace does not relieve employers of their ADA reasonable accommodation obligations. Employees with disabilities that made them more vulnerable to COVID-19, or that made it impossible for them to comply with health and safety protocols, were entitled to the same interactive accommodation process that applies in any other context.
Common accommodation requests during the return-to-work period included continued remote work, modified scheduling to reduce contact with other employees, and changes to physical workspace arrangements. Employers were required to engage in a good-faith interactive process to evaluate these requests, and blanket denials without individual assessment were inconsistent with the ADA’s requirements. The fact that a position had always been performed in person was not, by itself, sufficient to deny a remote work accommodation request without a proper individual analysis.
Religious Accommodation Requests for Vaccination Policies
Employers who implemented COVID-19 vaccination requirements encountered a significant volume of religious accommodation requests under Title VII of the Civil Rights Act. The EEOC’s guidance confirmed that employers were required to consider these requests and grant accommodations unless doing so created an undue hardship. Employers who denied religious accommodation requests without a documented analysis of the specific hardship involved, or who applied standards inconsistently across different types of requests, faced Title VII exposure.
According to the Equal Employment Opportunity Commission, the pandemic guidance has been updated periodically to reflect evolving conditions. A consistent, documented process for receiving, evaluating, and responding to accommodation requests is an important risk management tool regardless of the specific policy that triggers them.
Applying These Principles Beyond the Pandemic
The legal framework the EEOC articulated during the pandemic applies broadly to any employer health and safety policy. The direct threat analysis, the accommodation obligations, and the confidentiality requirements for medical information are all features of permanent employment law. Employers who understand these principles and apply them consistently are better positioned to defend their decisions in any context where workplace health and safety policies intersect with individual employee rights.
Contact Mandelbaum Barrett PC
Mandelbaum Barrett PC’s employment attorneys work with employers throughout New Jersey and New York on accommodation obligations, workplace health policies, and employment law compliance. If you have questions about how current EEOC guidance applies to your workplace policies, our team is ready to help.
To speak with a member of our team, contact Mandelbaum Barrett PC. Our attorneys are prepared to assist with your employment law needs.