EEOC Expands COVID-19 Guidance In Anticipation Of Return To Work Issues

04.23.2020

As this pandemic continues, employers face new concerns about allowing employees to return to the workplace. How can employers make the workplace safe? How can employers make their employees feel safe to return to the workplace?

Since March 17, 2020 the Equal Employment Opportunity Commission (“EEOC”) has provided COVID-19 related guidance in the form of questions and answers on its website. On April 17, 2020, the EEOC updated and expanded its guidance with an eye toward the easing of stay-at-home orders and employees’ eventual return to the workplace. Following is a summary of the main areas covered by the new guidance.

In the newly added “Return to Work” section of the guidance, the agency addressed screening workers for COVID-19 when they enter the workplace. The EEOC notes that the ADA permits employers to make inquiries and conduct medical exams if these are job-related and necessary to exclude employees whose medical condition poses a direct threat to the health and safety of other employees. The agency directs employers to follow the guidance of the CDC or other public health authorities in implementing such screening. The EEOC specifically notes that the CDC recently posted information on return to work by certain types of critical workers, therefore advising employers to check with the CDC and local health authorities to ensure employer guidelines comply with these authorities. Moreover, the EEOC reminds employers to make sure that they do not engage in unlawful disparate treatment when making decisions related to screening and exclusion.

The EEOC guidance advises that employers may require workers to wear personal protective gear and engage in infection control practices, and employers should be prepared to engage in the interactive process with employees who request accommodation due to a need for modified protective gear, such as non-latex gloves or gowns designed for employees who use wheelchairs. Other concerns may arise regarding religious accommodation with respect to wearing certain protective gear. This should be reviewed and protective equipment and garb modified, if feasible.

The agency advises that employers may inquire if employees with known disabilities will need reasonable accommodations when they return to the workplace. The EEOC adds that, as before, an employer need not provide a particular reasonable accommodation if doing so poses an undue hardship to the employer. However, the EEOC clarified that in some instances an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now due to a change in working conditions and / or the employer’s changed financial circumstances. The agency encourages employers and employees to work together to determine a feasible accommodation that does not pose an undue hardship to the employer.

The EEOC also addressed steps an employer should take to head off possible harassment and discrimination issues that may arise as a result of employees fears in returning to the workplace in the midst or aftermath of the pandemic. The agency suggests that employers remind employees that they may not harass or otherwise discriminate against coworkers based upon any protected class, in particular race and ethnicity, and instruct supervisors and managers to watch for, stop, and report any such behavior.

If you wish to review the entirety of the EEOC’s guidance, click here.

If you have any additional questions please feel free to contact your usual AALRR attorney or any of us here at the Firm.