Rina RussoApril 28, 2020 

On April 17, 2020, and April 23, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released updates to its publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” With the prospect of employees returning to work, the EEOC’s updates address several issues inherent in that return, such as COVID-19 testing of employees and accommodation challenges that employers may face as their employees return to work. Although the entire revised guidance can be found in the provided link above, some of the most notable updates are below:

1. Employers may administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace.

The Americans with Disabilities Act (ADA) requires that any mandatory medical test of employees be “job related and consistent with business necessity.”   This standard allows employers to take steps (including testing) to determine if returning employees have the virus because a COVID-19 positive employee entering the workplace will pose a direct threat to the health of others. Along with testing, employers should also maintain infection control practices (such as body temperature checks) to prevent infection.  Employers must require employees who have tested positive for COVID-19 or have COVID-19 symptoms to stay home.

2. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer.

Screening candidates is only permissible when it is done for all entering employees in the same type of job. An employer may also withdraw a job offer when it needs the applicant to start immediately, but the individual is confirmed positive for COVID-19 or is experiencing symptoms of COVID-19 because the individual cannot safely enter the workplace.

3. An employer may not treat high risk applicants differently during the pandemic.

An employer may not postpone the start date or withdraw a job offer because a candidate is 65 years old or pregnant because those individuals are at a high risk of COVID-19. However, an employer may choose to allow telework or discuss with these individuals if they would prefer a postponed start date.

4. Employers engaging in the interactive process to provide returning workers with accommodations may consider the effects of the pandemic while evaluating reasonableness.

In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. Acquiring some accommodations during the pandemic may pose significant difficulty and expense, making it unreasonable. However, employers may still not engage in blanket refusals to find reasonable accommodations because of the pandemic. Even with constraints imposed by the pandemic, some accommodations may meet an employee’s needs without causing undue hardship, as low-cost solutions may be achieved with materials already on hand or easily obtained.

5. Employers may offer reasonable accommodations for employees who, due to a preexisting disability, are at higher risk from COVID-19.

An employer may also reach out to employees before states ease stay-at-home orders to find out if they will need reasonable accommodations when they are permitted to return to the workplace.

6. Employers are not exempt from providing reasonable accommodations to employees while implementing infection control practices. New rules requiring employees to wear personal protective equipment should not interfere with the employer’s ongoing duty to consider accommodations for employees with medical conditions that may limit their compliance.

Rina Russo is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at rrusso@walterhav.com or at 216-928-2928 .

Shaka Sadler is an associate at Walter |Haverfield who focuses her practice on labor and employment law. She can be reached at ssadler@walterhav.com or at 216-619-7851.