The EEOC continues to periodically update its technical assistance document entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” with the latest updates made on June 17, 2020. The same day, OSHA released its “Guidance on Returning to Work,” which makes new recommendations in addition to what is contained in previous OSHA guidance.
Among other points, the updates include the following important clarifications relevant to workplace reopenings:
• Antibody tests are not permitted (A.7). The EEOC’s newly-stated position is that antibody testing is not job-related and consistent with business necessity, and thus employers cannot require such testing of current employees. This is not merely an instruction not to use antibody testing in making decisions on returning to work (which the CDC currently discourages), but is a flat prohibition on mandatory testing. Notably, the EEOC reserves the right to change its opinion as antibody testing, and the CDC’s opinion regarding testing, develops. Further, the EEOC does not suggest that antibody testing cannot be done on a voluntary basis.
• Fear of exposing a family member to COVID-19 upon a return to work is not a basis for reasonable accommodation (D.13). Although the EEOC previously made clear that an employer may have an obligation to reasonably accommodate a disabled employee who is concerned about returning to work because of an underlying health condition, an unanswered question was whether that principle extended to family members who are at higher risk. The EEOC has now clarified that the answer to this question is “no,” because the ADA does not require that employers accommodate an employee with respect to the disability of a family member or other associated person. So, for example, an employer does not have to grant a telework arrangement to an employee because that employee lives with a person who has a disability and is at higher risk from COVID-19. That said, OSHA recommends that employers nonetheless consider such accommodations in connection with re-opening. See OSHA Guidance on Returning to Work, p. 5.
• Harassment of Asian employees regarding coronavirus is prohibited (E.3). The EEOC specifically draws attention to the potential harassment of Asian employees or those who are perceived to be Asian, “including [harassment] about the coronavirus or its origins.”
• When reopening, employers can preemptively initiate discussions with all employees about continued teleworking (G.6). While the burden is typically on employees to request reasonable accommodations to return-to-work instructions, the EEOC makes clear that communications to all employees regarding continued teleworking options is permissible even in advance of reopening instructions.
• Employers can, if they choose, provide more flexibility to employees age 65 and over (H.1). The EEOC clarifies that while employers have no obligation to reasonably accommodate employees solely based on their age, they are free to do so if they choose. And it reminds employers that if older employees have disabilities, they may be entitled to reasonable accommodations based on the disability, not age.
• Employers cannot treat female employees more favorably than similarly-situated caregiving male employees when considering extended telework arrangements because of children at home (I.1). While employers are free to provide extended telework or similar options to employees who have school-age children at home, they must be careful not to make gender-based assumptions about caregiving responsibilities, including by treating male caregiving employees less favorably than female caregivers.
• Employers should develop policies and procedures for preventing, monitoring, and responding to COVID-19 threats in the workplace. OSHA recommends that these policies include workplace-specific hazard assessments, hygiene practices, social distancing, identification and isolation of sick employees, return to work practices for sick or exposed employees, engineering controls, workplace flexibility (e.g., telework and sick leave), training, and anti-retaliation provisions. The guidance document contains recommendations with respect to each of these practices.
• Employers should not assume that negative COVID-19 tests mean no virus, and should implement other safeguards regardless of test results.
• Temperature checks are better done by employees themselves at home and may have limited utility. Because COVID-19 can be asymptomatic, OSHA recommends that employers who implement temperature checks are better off having employees check their temperature at home in conjunction with a check for other symptoms, rather than checking temperatures when employees arrive at work. And like COVID-19 testing, a negative temperature check by itself does not mean that the employee does not have COVID-19.
The Bottom Line
While the guidance materials issued by the EEOC and OSHA are not legally binding, they reflect the agencies’ investigative and enforcement priorities. In addition, their recommendations can provide employers with solid defenses to discrimination or safety-related claims raised by employees. All employers that are reopening or considering doing so should be familiar with the guidance in both documents, including the above key points.