Last week we told you about some of the updates the U.S. Equal Employment Opportunity Commission (EEOC) made to its Technical Assistance Questions and Answers on COVID-19 testing and vaccine in the workplace on July 12. We promised you a part two, and here it is.
Return to the workplace
G.2. How should employers respond if they require personal protective equipment (PPE) and other infection control practices, but employees ask for an accommodation due to a disability or a sincerely held religious belief, practice or observation that affects their ability to wear PPE or engage in infection control practices?
The employer should discuss the request and provide the requested or an effective alternative accommodation, as long as it doesn’t cause undue hardship to the business under the Americans with Disabilities Act (ADA) or Title VII.
G.3. If an employee has a medical condition that under the Centers for Disease Control and Prevention (CDC) puts that person at risk for severe illness from COVID-19, they need to let the employer know they need a change for a medical condition. It can be done orally or in writing. Note: The employee (or a third party) doesn’t need to say “reasonable accommodation” or even reference the ADA. All they need to do is communicate they have a medical condition that requires a change. After the request, the employer is allowed to ask questions and request medical documentation to aid in its decision as to whether the employee has a “disability” as defined by the ADA and if there’s a reasonable accommodation that can be provided without undue hardship.
G.4. What happens if an employer knows an employee has one of the medical conditions the CDC identifies as likely to cause severe illness if they get COVID-19, but doesn’t ask for an accommodation to return to the workplace?
There is nothing in the ADA that mandates that employers provide a change if an employee hasn’t requested an accommodation. And just because an employee has one of the medical conditions identified by the CDC doesn’t mean they have a disability or a record of a disability as defined in the ADA. And an employer is only required to provide a reasonable accommodation if the employee has a disability.
If, however, the employee has a disability, the ADA doesn’t allow the employer to exclude the employee from returning to work. The only way they can do that is if the employee’s disability poses a “direct threat” to the employee’s health or safety “that can’t be eliminated or reduced by reasonable accommodation.
Note: A direct threat requires the employer to prove the employee has a disability that poses a “significant risk of substantial harm” to their own health or safety, or the safety of their co-workers. And being on the CDC’s disability list isn’t solely enough to base the direct threat on. An individualized assessment based on a reasonable medical judgment about the person’s disability must be done.
G.5. Examples of reasonable accommodations that may reduce or eliminate a direct threat to the employee or co-workers are:
- Additional or enhanced protective gowns, masks, gloves or other PPE beyond what’s generally provided to employees to return to work.
- Additional or enhanced protective measures, such as high-efficiency particular air filtration systems or other enhanced air filtration measures
- Placing barriers between employees
- Increasing space between employees and or customers
- Removal or substation of “marginal” functions
- Telework
- Modified schedules, and
- Moving the physical location of where the work is performed.
This list is not comprehensive.
G.6. Employers can provide information to employees before they return to work about who to contact if they want to request a reasonable accommodation for a disability or sincerely held religious belief. Once the request is made the employer can start the communication process. Employers may also put in the communication notice all medical conditions identified by the CDC that place employees at higher risk of illness if they get COVID-19 and let everyone know they are willing to work with each and every person on a case-by-case basis about requests.
Age
H.1. It’s been reported by the CDC that older adults are at the highest risk for severe illness when it comes to COVID-19. Adults, 40 and above, however, are protected from discrimination under the Age Discrimination in Employment Act (ADEA). It prohibits a covered employer from excluding an individual involuntarily from the workplace based on age. That goes for even if the employer is acting out of the goodness of its heart, such as the employee being at high risk for severe illness from COVID-19. Employers are also allowed to provide flexibility to older workers, even if they’re being treated more favorably than younger workers.
COVID -19 vaccinations
K.1. Federal EEO laws don’t prevent employers from requiring all employee to be vaccinated from COVID-19. But that’s subject to the reasonable accommodation provision of Title VII and the ADA and other EEO considerations. They also don’t prevent employers from requiring documentation or other confirmation that employees have been vaccinated. However, employers may be required to make exceptions for some employees who can’t get vaccinated due to a sincerely held religious belief or a disability and provide them with a reasonable accommodation unless that accommodation poses an undue hardship to the business.
K.2. Reasonable accommodations for employees who can’t be vaccinated due to disability, religious reasons or pregnancy can include wearing a facemask, social distancing from co-workers and customers, modified work shifts, periodic testing for COVID-19, telework and reassignment.
K.4. Employee’s information about their COVID-19 vaccination is confidential medical information under the ADA and must be kept separate from personnel files under the ADA. Employers are required to keep employee’s medical info confidential. Employers may share the vaccination status or COVID-19 test results of employees with other employees who need it to do their jobs. But those employees who the info is shared with are also required to keep the information confidential.
K.5. The ADA allows employers to require a person with a disability to meet a qualification standard that’s applied to all employees, like a COVID-19 vaccination requirement, if the standard is job-related and consistent with business necessity. If, however, an employee can’t meet the standard because of a disability, the employer may not require compliance for that employee unless it poses a “direct threat” to the health or safety of the other employee or others while performing their jobs.
K.16. The ADA doesn’t limit incentives employers may offer employees to encourage them to voluntarily get a COVID-19 vaccination, if the healthcare provider giving the vaccine isn’t the employer or its agent. On the other hand, if the vaccination is administered by the employer or its agent, the ADA says disability-related inquiries apply and the value of the incentive may not be substantial enough as to be coercive.
