On Sept. 8, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance, offering additional instruction regarding the potential clash between teleworking accommodation requests and office reopening procedures. The updated guidance also address the EEOC’s position on COVID-19 screening and testing of employees. The new guidance comes in the form of additional questions and answers in the EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” document.
Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to employees who need them to perform their job, unless the requested accommodation poses an undue hardship. As businesses begin reopening after months of some employees working from home, many employers will encounter employee requests to continue telecommuting as an accommodation.
The EEOC’s guidance explains that employers need not “automatically” grant telework accommodations to every employee who requests them. As an initial matter, if no disability-related limitation necessitates telework, the employee is not entitled to the accommodation. An employer has the right to know what the disability-related limitation is and how it impacts the employee’s ability to perform his or her job in the workplace. Additionally, employers are not required to provide an employee’s preferred accommodation. If a limitation can be addressed with an accommodation other than telework, an employer may provide it instead.
Further, employers are never required to eliminate an essential function of a job to grant an accommodation to an employee. An employer’s decision to temporarily excuse an essential function of a job to keep its operations running as normal as possible during COVID-19 does not mean that the change is permanent, that it does not pose an undue hardship, or that telework is always a feasible accommodation. However, the EEOC explains this is a fact-specific inquiry, so employers should continue evaluating requests on a case-by-case basis.
As for employees who were denied a telework accommodation prior to the pandemic, employers could treat their work from home during COVID-19 as a trial period in evaluating renewed requests for telework accommodations when they return to the workplace. Employers should consider an employee’s success — or failure — with telework over the past few months in evaluating renewed requests.
In many areas, employees continue to telework. For accommodation requests that arise in the meantime, the EEOC guidance states that COVID-19-related disruptions in business operations could result in an excusable delay to the interactive process because of the unexpected and increased requests for accommodations. Additionally, accommodations that existed pre-pandemic may or may not be reasonable when employees are teleworking. For example, an employee might already have at home the modified tools needed to work effectively. On the other hand, a previously feasible reasonable accommodation may now pose an undue hardship to the employer.
COVID-19 Screening and Testing
In addition to telework accommodations, the EEOC guidance addresses COVID-19 screening and testing. Specifically, it provides that employers may ask all employees physically entering the workplace if they have COVID-19 symptoms. However, an employer may not ask employees whether they have family members with COVID-19 symptoms, as this could violate the Genetic Information Nondiscrimination Act (GINA). Instead, employers may ask employees if they have had any close contact with individuals with COVID-19 symptoms, including household members.
The EEOC guidance also affirms that employers may prohibit an employee from entering the workplace if the employee refuses to have his or her temperature taken or refuses to screen for COVID-19 symptoms. Employers may, however, need to grant accommodations to employees regarding the screening process.
For assistance in addressing the unique issues raised by COVID-19 or ADA issues generally, please reach out to your McGuireWoods contact, the authors or any other members of the McGuireWoods labor and employment group.
McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.