As you know, the various agencies continually update their guidance regarding COVID. We have stopped sending immediate alerts (unless there might be a dramatic change) but we will continue to update you in due course. In September, the EEOC has provided updates on the following FAQs:

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace?

A.8. May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19?

A.9. May a manager ask only one employee—as opposed to asking all employees—questions designed to determine if she has COVID-19, or require that this employee alone have her temperature taken or undergo other screening or testing?

A.10. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19?

A.11. What may an employer do under the ADA if an employee refuses to permit the employer to take his temperature or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19?

A.12. During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick?

A.13. May an employer ask an employee why he or she has been absent from work?

A.14. When an employee returns from travel during a pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled?

The answers were updated to reflect updates by the CDC and the FDA. In most part, they do not reflect changes from the EEOC’s earlier FAQs.

Notably, the update to FAQ A.6 reads, “Consistent with the ADA standard, employers should ensure that the tests are considered accurate and reliable.” Again, the burden is upon employers to keep up with the CDC and FDA information on what tests should be administered to determine whether a person is currently infected with the virus.

The EEOC also tweaked the following FAQs regarding confidentiality:

B.5. Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do?

B.6. An employee who must report to the workplace knows that a coworker who reports to the same workplace has symptoms associated with COVID-19. Does ADA confidentiality prevent the first employee from disclosing the coworker’s symptoms to a supervisor?

B.7. An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. May the employer tell staff that this particular employee is teleworking without saying why?

B.8. Many employees, including managers and supervisors, are now teleworking as a result of COVID-19. How are they supposed to keep medical information of employees confidential while working remotely?

Again, the answers are not significantly different, but it is worth reviewing – especially the answer to FAQ B.5 which will provide every employer, again, with valuable practical guidance on what they can and cannot do with the medical information they are getting on a daily basis during this pandemic.

In the realm of employer’s providing to their employees a “reasonable accommodation,” the EEOC has updated the following FAQs since the original publication in the Spring:

D.8. May an employer invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace?

D.14. When an employer requires some or all of its employees to telework because of COVID-19 or government officials require employers to shut down their facilities and have workers telework, is the employer required to provide a teleworking employee with the same reasonable accommodations for disability under the ADA or the Rehabilitation Act that it provides to this individual in the workplace?

D.15. Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?

D.16. Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request?

D.17. Might the pandemic result in excusable delays during the interactive process?

D.18. Federal agencies are required to have timelines in their written reasonable accommodation procedures governing how quickly they will process requests and provide reasonable accommodations. What happens if circumstances created by the pandemic prevent an agency from meeting this timeline?

Keep in mind that these are just the Reasonable Accommodation FAQs that have been modified; there are more. How and when and why reasonable accommodations are made is complicated. If this situation is facing you, consult the FAQs and perhaps legal counsel.

As we collectively continue to work during and through this pandemic, we must be vigilant in our efforts to keep up with the ever changing scientific, medical, and legal landscape.

By Kristen L. Brightmire, kbrightmire@dsda.com