Hunton Employment & Labor Perspectives

On April 17, 2020 the EEOC updated its’ Technical Assistance Questions and Answers to provide employers with additional guidance interpreting the ADA, Rehabilitation Act, and other EEO Laws in the midst of the COVID-19 pandemic.  The EEOC first reminds employers that while these laws continue to apply, employers should still adhere to the ever-changing guidelines and suggestions made by the CDC or state/local health authorities.  With that in mind, the new guidance addresses several topics, summarized below.

Reasonable Accommodation

• If it’s not obvious or already known, an employer may still ask questions, request medical documentation, and engage in the interactive process to determine whether an employee has a disability as defined by the ADA in response to an employee request for accommodation.
• Employers may provide temporary accommodations, shorten, or even forego the interactive process if there is some urgency to providing an accommodation. Employers should consider providing short-term accommodations with end dates related to the need for accommodation. For example, an accommodation may end when an employee returns to the workplace due to changes in government restrictions limiting the number of people who may congregate.
• Employers may begin the interactive process by asking employees now if they will need a reasonable accommodation in the future when they are permitted to return to the workplace.
• The circumstances of the pandemic are relevant in determining whether a requested accommodation poses an undue hardship on an employer. Employers may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace.  The sudden loss of an employer’s income stream, the amount of discretionary funds available at this time, and whether there is an expected date that current restrictions on an employer’s operations will be lifted are all relevant considerations in determining whether an accommodation poses “significant expense”.

Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics

• Employers should remind all employees that harassment and discrimination based on a protected class is against federal EEO laws. Additionally, supervisors should be reminded of their role in watching for, stopping, and reporting any harassment or other discrimination.

Return to Work

• Employers can act consistent with the ADA as long as any screening implemented in conjunction with employees returning to the workplace is consistent with advice from the CDC and public health authorities for that type of workplace at that time.
• Employers should be careful not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and excluding returning workers.
• When an employer requires returning workers to wear personal protective gear and an employee with a disability needs a related reasonable accommodation under the ADA or a religious accommodation under Title VII, the employer should discuss the request and provide a modification or alternative if it doesn’t create an undue hardship.