EEOC Updates Guidance on COVID-19 ADA, Hiring and Discrimination Issues

By Stuart M. Katz

The U.S. Equal Employment Opportunity Commission (EEOC) has updated its guidance relating to the applicability of discrimination and harassment laws in the context of the Covid-19 pandemic. The complete guidance can be viewed here.

Some key points from the guidance are highlighted below:

ADA Issues

• During a pandemic, ADA-covered employers may ask employees who call in sick if they are experiencing coronavirus symptoms.
• Because the CDC and other authorities have acknowledged community spread of Covid-19, employers may measure employees’ body temperature.
• Employers may require a doctor’s note certifying fitness for duty from an employee returning to work after a Covid-19 related absence from work.

Hiring & On-boarding

• An employer may screen job applicants for Covid-19 symptoms after making a conditional job offer, as long as it does so for all entering employees in the same type of job.
• When an employer needs a job filled immediately, it may withdraw a job offer for an individual who has Covid-19 or symptoms associated with it.

Reasonable Accommodation

• An employee who was already receiving a reasonable accommodation prior to the pandemic may be entitled to an additional or altered accommodation, absent under hardship.
• An employer is still allowed to request information from an employee who requests a reasonable accommodation either at home or in the workplace, to determine if the condition is a disability.
• An employer may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens, and may begin the “interactive process” to ascertain whether the impairment is a disability and the reasons that an accommodation is needed.

Pandemic-related Harassment

• Employers can help reduce the chance of harassment by explicitly communicating to employees that fear of the Covid-19 pandemic should not be misdirected against individuals because of a protected characteristic such as national origin or race.

Other Covid-19 Client Alerts are available on our firm’s website at www.cohenandwolf.com

With additional clarifications and information emerging on a nearly daily basis, it can be difficult to keep track of the many moving pieces that are in play. Please feel free to contact us with any questions.

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