Since early in the pandemic, the EEOC has been maintaining a Technical Assistance Questions and Answers page, which it updates from time to time. As employers’ attention turns to life after COVID-19 and planning for our return to the workplace, on April 17, the EEOC updated its COVID-19 pandemic informal guidance to address the challenges employers will face in the return-to-work transition.
With respect to the reasonable accommodation process, the EEOC clarified that employers may provide temporary accommodations for disabilities if, due to pandemic conditions, the employer and employee lack the time to engage in a full interactive process, or if accommodation needs are expected to change as government-imposed restrictions are lifted. The EEOC approved of employers providing short-term accommodations with end-dates that evolve based on public health directives, or even providing accommodations on a “trial basis, with an end date, while awaiting receipt of medical documentation.” Such measures may be particularly useful for employees with preexisting conditions at greater risk because of, or exacerbated by, the pandemic.
The EEOC also acknowledged that the pandemic imposes unique time and resource burdens on employer. Therefore, the Commission approves of employers asking employees now whether they will need reasonable accommodations when they return to the workplace to avoid a crush of such requests all at once. The EEOC also acknowledges that the unique economic pressures on employers due to the pandemic may mean that an accommodation that previously would not have posed an undue hardship may pose one now. For example, the sudden loss of an employer’s income stream and unavailability of discretionary funds may make otherwise reasonable accommodations unduly burdensome during current economic conditions. In such case, free or low-cost accommodations must still be considered, while more burdensome requests may be denied. Similarly, some requests for accommodation may pose “significant difficulty” in current conditions that they otherwise would not, such as because supply chain challenges make certain equipment more difficult to obtain, or because social distancing measures make implementing home- or office-based workplace accommodations more difficult, or because hiring temporary workers in order to facilitate job restructuring is more challenging due to economic pressures. Once again, employers should endeavor to provide some measure of accommodation, even if not the ideal or requested accommodation.
The EEOC reiterated that, even while teleworking and again upon returning to the workplace, as employees request accommodations, employers may request information from employees to determine if the employee’s condition is a disability, unless it is obvious or already known. The employer may still engage in the interactive process to determine how the purported disability creates a limitation, how the requested accommodation will effectively address the limitation, whether other accommodations could effectively address the issue, and how the proposed accommodation will enable the employee to continue performing his or her essential job functions. The mere existence of pandemic conditions does not override the general rule that employers and employees engage in an interactive process to determine reasonable accommodations for disabilities.
Reopening the Workplace
The EEOC acknowledges there will be significantly heightened fears among employees when reentering the workplace, so confirms that employers may make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity to try to maximize the safety of the workplace. Inquiries and reliable medical exams meet this standard if necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. Employers should take their cue on what constitutes a “direct threat” from reliable, objective medical evidence, such as guidance from the Centers for Disease Control and Prevention (CDC) and other public health authorities. If screening measures are consistent with CDC advice for the particular workplace, employers are on safer ground. Therefore, temperature testing, symptom screening, and self-reporting remain lawful measures; however, employers are reminded not to engage in unlawful disparate treatment based on protected characteristics (such as age, pregnancy, or known disability) when screening or excluding employees from the workplace.
Many employers reopening the workplace plan to require employees to wear personal protective gear and engage in infection control practices as a condition of returning to work. The EEOC confirmed that the use of masks and gloves, requiring regular hand-washing, and implementing social distancing protocols may be lawful, but employers may still be required to provide reasonable accommodations with respect to such measures. For example, an employee with a latex allergy may request non-latex gloves, or an employee who relies on lip reading to communicate may request a clear or modified face mask, or an employee with a religious observation may request to be excused from wearing certain protective equipment. Employers receiving requests to modify workplace policies must discuss the request and determine whether an alternative is feasible or poses an undue hardship.
The EEOC reinforced that tensions may run high as employees return to work, and therefore managers and supervisors should be advised to watch for, prevent, and report and discipline harassment or other discrimination. Employers must immediately review and investigate, and if necessary, remedy, incidents of harassment or discrimination. Employers should be particularly vigilant for escalation in harassment or discrimination on the basis of age, disability or suspected disability, race, and national origin.