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.