Employers may choose to send a reminder to the entire workforce noting Title VII’s prohibitions on harassment, reminding employees that harassment will not be tolerated, and inviting anyone who experiences or witnesses workplace harassment to report it to management. Employee Benefits and Executive Compensation, the Centers for Disease Control and Prevention (“CDC”), the identity, and contact information for, the individual(s) to whom the employee should direct his or her request (an employer may wish to designate specific contacts, depending on the nature of the accommodation requested, e.g., disability, religious belief, or pregnancy, and should make sure that the company representative receiving such inquiries understands how to deal with them in a non-discriminatory manner); and, a statement that “the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions.”. Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). Yes. Because the CDC and FDA may revise their recommendations based on new information, it may be helpful to check these agency websites for updates. (4/9/20). Your employer also cannot require you to find a replacement to cover your hours while you’re on leave. B.7. (4/23/20; updated 9/8/20 to address stakeholder questions about updates to CDC guidance). E.3. In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? 3. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions. D.3. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available absent undue hardship. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation. Yes. For more information, see here. An employer has the discretion to choose among effective accommodations. In addition, the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee's disability necessitates an accommodation, either the one he requested or any other. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If advance requests are received, employers may begin the "interactive process" – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. The ADA requires that all medical information about a particular employee be stored separately from the employee's personnel file, thus limiting access to this confidential information. Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. All nondiscrimination standards under Title I of the ADA also apply to federal agencies under Section 501 of the Rehabilitation Act. The laws enforced by the EEOC prohibit covered employers from selecting people for furlough or layoff because of that individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity. Donate now >>, COVID-19 Alert: What you need to know about your workplace rights & ongoing legislative action. The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. [7] See, e.g., the proclamation issued by the governor of Washington providing special, pandemic-related protections for older workers (65 years of age or older) and “[p]eople of all ages with underlying medical conditions, particularly if not well controlled.”, [8] As noted earlier, be aware of state and local law. info@eeoc.gov But the CDC recommends pregnant women protect themselves from infection. During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability. Although neither the ADA nor the Age Discrimination in Employment Act (“ADEA”) entitles employees to a reasonable accommodation due to age, the EEOC states that providing an accommodation on that basis is “not prohibited” by the ADEA, and is “consistent with the ADEA, the ADA, and CDC guidance. Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. What actions should the employer take? (4/17/20). (4/17/20). But to the extent that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19? The EEOC has further suggested that employers consider having “flexible” policies, which would allow for accommodations where they are not for a covered disability. Employers should make every effort to limit the number of people who get to know the name of the employee. Select Task Force on the Study of Harassment in the Workplace (includes detailed recommendations and tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated). As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Individuals may request accommodation in conversation or in writing. J.2. (3/17/20). Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, meaning significant difficulty or expense. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements? In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Medical information includes not only a diagnosis or treatments, but also the fact that an individual has requested or is receiving a reasonable accommodation. 6. May an employer delay the start date of an applicantwho has COVID-19 or symptoms associated with it? You meet any additional criteria set forth by the Secretary of Labor. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed. Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. If necessary, an employer also may request medical documentation to support the employee’s request, and then determine if that accommodation or an alternative effective accommodation can be provided, absent undue hardship.[5]. Is there a right to accommodation based on pregnancy during the pandemic? B.3. Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. You may be eligible for pandemic unemployment assistance (PUA) including if you are unable to work because your health care provider advises you to self-quarantine due to concerns related to COVID-19. (9/8/20; adapted from 3/27/20 Webinar Question 19). To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. Yes. (4/9/20). Note: Other federal laws, as well as state or local laws, may provide employees with additional protections. (5/5/20). A.14. Yes. Discrimination: Refusal to Allow Actual or Perceived “Higher Risk” Individuals to Return to the Workplace, The FAQS make unequivocally clear that the ADEA prohibits “a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer is acting for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.”, Similarly, an employer may not exclude an employee from the workplace involuntarily due to pregnancy. In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. (9/8/20; adapted from 3/27/20 Webinar Question 20). [2] As discussed below, some states and cities deem pregnancy, in and of itself, a basis for a required accommodation. 4. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the "essential functions" of his position (that is, the fundamental job duties).
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