By Rob Gilmore and Lyndsay Ross
With the forthcoming prospect of stay-at-home orders slowly being lifted, employers are soon to be confronted with a new set of COVID-19 related issues: how to safely (and legally) return employees to work. While natural for employers to feel a level of paternalism toward certain employees, such as those who are older or expectant mothers, employers need to be wary of potential discrimination concerns.
The Equal Employment Opportunity Commission (EEOC) recently released new guidance regarding compliance with the Americans with Disabilities Act (ADA), the Rehabilitation Act and other equal opportunity laws in the age of COVID-19. We have summarized some of the key highlights here.
Employers may take some basic precautions when employees return to work
Employers can ask employees who are reporting to work whether they are experiencing any COVID-19 specific symptoms, such as fever or shortness of breath. If employees do have such symptoms, employers can ask the employees to stay home. Employers may take an employee’s temperature, but should remember some people with COVID-19 do not run a fever. An employer may administer a COVID-19 test before permitting employees to enter the workplace to determine if employees have the virus because an individual with the virus poses a direct threat to the health of others. Employers can also request a doctor’s note before an employee’s return to work but should be mindful that requesting a note is not always practical. Finally, employers can request employees to wear gloves or masks, or implement certain infection control practices, such as regular handwashing.
Employers may impose some specific requirements on new hires
An employer who is hiring may screen applicants for COVID-19 symptoms after making a conditional job offer but must do so for all employees in the same type of job. Employers are also permitted to do a medical exam after making a conditional offer of employment, such as taking an applicant’s temperature. An employer may delay the start date of an applicant with COVID-19 symptoms, or may withdraw a job offer if the employee has symptoms and cannot safely enter the workplace.
Employers may not postpone a start date because the applicant is pregnant or 65+
While expectant mothers and individuals over 65 may be at greater risk for COVID-19, the EEOC has stated this does not justify unilaterally postponing a start date or withdrawing a job offer. However, an employer may ask if such individual would like to postpone the start date or discuss teleworking.
Reasonable accommodations for employees with disabilities
If an employee has a disability that puts him at greater risk for COVID-19, there are some accommodations employers can offer without undue hardship. If an employee with a disability requests reduced contact with others, the employer should consider designating one-way aisles and using plexiglass, tables or other barriers to ensure minimum distance between the employee and other employees or customers. Employers should also consider temporary job restructuring, such as temporary transfers to a different position or modifying a work schedule. However, if the employer is not able to offer such flexibility due to the nature of the job or another reason, accommodation may be considered an undue hardship, and the employer is not obligated to offer the accommodation. Some accommodations that previously did not pose an undue hardship may now amount to an undue hardship, given the changes COVID-19 has affected.
Employers may provide temporary accommodations
In light of changing government restrictions, an employee’s need for accommodation may change. Employers can impose an end date for a given accommodation or opt to provide accommodation on an interim basis, pending medical documentation.
Employers may still request certain information
If an employee requests an accommodation for a medical condition, either at home or in the workplace, an employer is still entitled to ask questions or request medical documentation to determine whether the employee has a “disability” under the ADA. Employers can also seek information regarding why accommodation is needed and how the proposed accommodation will help the employee. Employers can additionally ask employees now if they will need accommodation in the future once they return to work.
Determining whether a requested accommodation poses “significant difficulty” or “significant expense”
The potential sudden loss of an employer’s income or a shortage of discretionary funds are relevant considerations in determining whether to offer a requested accommodation. Similarly, some requested items for accommodation purposes may now be harder to come by. This does not mean an employer can reject any accommodation that costs money – the employer must weigh the cost of accommodation against its current budget, while taking COVID-19 related constraints into account.
KJK will continue to monitor changes that arise as employers begin to welcome employees back to the workplace. For more information about what you should do as you begin to reopen your workplace, contact Rob Gilmore at firstname.lastname@example.org or 216.736.7240 or Lyndsay Ross at email@example.com, 216.736.7201, or reach out to any of our Labor & Employment professionals.