Returning to Work Without Running Afoul of the EEOC -- Part Two

Now that workplaces will be opening back up – hopefully – you may have questions on what you can require from your employees when they return.  On Friday, the EEOC again amended its guidance on COVID-19 with helpful information on this topic.  Here are some of their key questions and answers, with our commentary in bold:

1. May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace?  Yes. Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens.  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. While you may not want to invite RA requests, it probably would be a good idea to get out in front of this so that you can think through your response before, for example, the inevitable request from an employee that they “need” to continue to telework due to a disability.
2. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses "significant expense" during the COVID-19 pandemic? Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components).  But, the sudden loss of some or all of an employer's income stream because of this pandemic is a relevant consideration.  Also relevant is the amount of discretionary funds available at this time - when considering other expenses - and whether there is an expected date that current restrictions on an employer's operations will be lifted (or new restrictions will be added or substituted).  These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.  For example, even under current circumstances, there may be many no-cost or very low-cost accommodations. You now have a green light to take a harder stand on RA requests that require the outlay of funds, if circumstances justify it.
3. As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace?  The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity.  Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. Direct threat is to be determined based on the best available objective medical evidence.  The guidance from CDC or other public health authorities is such evidence.  Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.  For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace.  Similarly, the CDC recently posted information on return by certain types of critical workers (emphasis added).  Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion. Common-sense requests designed to protect your employees, customers, and invitees will not run afoul of the ADA.
4. An employer requires returning workers to wear personal protective gear and engage in infection control practices.  Some employees ask for accommodations due to a need for modified protective gear.  Must an employer grant these requests? An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).  However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification, or an alternative, if it is feasible and does not create an undue hardship on the operation of the employer's business under the ADA or Title VII.  As has been the case since day one with COVID-19, there is no one-size-fits-all answer.

Stay safe and keep the course.  And please let us know if we can help.

Thanks, Jack, Elizabeth and Jim