EEOC Updates ADA Guidance On Commonly Asked COVID-19 Questions

On September 8, 2020, the Equal Employment Opportunity Commission (EEOC) updated its FAQs on the Americans with Disabilities Act (ADA) and COVID-19. The guidance addresses topics such as employee health screening, medical information confidentiality, and reasonable accommodations. It is available here:

The guidance authorizes an employer to implement mandatory COVID-19 testing on employees. The testing, albeit a medical examination, is allowed be­cause it is job-related and consistent with business ne­cessity: an individual with a virus poses a direct threat to the health of others. Under this same “direct threat” rationale, an employer may also ask employees physi­cally in the workplace whether they have COVID-19 or related symptoms and may exclude those who do from entering the workplace. The employer may even bar an employee from the workplace who refuses to be screened or refuses to answer whether he or she has COVID-19 or related symptoms.

Upon learning that an employee has tested positive for COVID-19 or is symptomatic, an employer can re­port this information to “appropriate employer offi­cials” who are responsible for alerting public health au­thorities (e.g., for purposes of contact-tracing). Otherwise, an employer “should make every effort to limit the number of people who get to know the name of the employee” and should instead use generic de­scriptors (e.g., “someone on the fourth floor”) to avoid disclosing confidential medical information.

The guidance provides that an employer may inform the workforce that employees with disabilities may request accommodations before the workplace re­opens. Such a request would trigger the ADA interactive process. An employee’s failure to request an accommo­dation before returning to the workplace would not preclude an employee from requesting an accommodation later.

The guidance emphasizes that allowing an employee to telework as an accommodation during COVID-19 does not mean that the employer must auto­matically grant teleworking as a reasonable accommo­dation in the future. The determination as to what con­stitutes a reasonable accommodation must continue to be made on a case-by-case basis.