Equal Employment Opportunity Commission (EEOC)

By: Marleigh Miller, Search Associate, GattiHR Industrial

Just as individuals and businesses are adjusting their processes to the “new normal” that COVID-19 has thrusted us into, organizations like the Equal Employment Opportunity Commission (EEOC) are doing the same and modifying their guidelines to help provide direction in these extenuating circumstances. Questions and concerns have been rising, regarding specific scenarios within Disability and Reasonable Accommodation, Hiring and Onboarding and Pandemic-related harassment in the workplace, as the current climate has everyone facing circumstances they may have not been in prior to the pandemic.

Disability and Reasonable Accommodation

Some jobs can only be done on-site or in-office, and for those with pre-existing conditions that make them at-risk of COVID-19, this isn’t possible. However, there are reasonable accommodations that could be put into place to provide protection and limit exposure to the virus. The key concept here is understanding “undue hardship.” Undue hardship is the level at which the employer can meet the needs of the disabled employee without suffering said hardship. However, employers cannot just generally conclude that the accommodation would bring them or the business hardship.

An assessment must be done to provide clear and specific metrics on how and why the accommodation would incur hardship. To review the factors that go into such as assessment, please see the Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA. Some reasonable and low-cost accommodations could include temporary transfers or change in assignments, a modified work schedule, or achieving an accommodation with materials already on-hand such as barriers to ensure physical distancing. While it is the employee’s duty to inform their employer of need for an accommodation, it is the employer’s duty, however, to initiate and engage in what is called the “interactive process.”

This interactive process is an obligation of the employer to conduct dialogue with the employee and do everything that they reasonably can do to provide relief. Sometimes, it is also the employer’s duty to engage in the interactive process, even if the employee has not directly requested assistance. If the employer knows that their employee has a disability and that they desire an accommodation, it is their responsibility to start the interactive process. Failure to conduct the interactive process does not automatically result in liability under the ADA, but it can if it results in the employee not receiving accommodation when they do in fact have a disability and desire accommodation. Notice of disability and need for accommodation can come from mediums other than the employee themselves such as FMLA leave paperwork, family members or friends, or the observable inability to perform job functions and symptoms of the disability that are obvious to the supervisor and other employees. These symptoms or other mediums of notice of disability cannot be ignored by the employer, even if the employee has been cleared to return to work.

For those that didn’t need accommodations prior to COVID-19 but are affected now, whether it be because of mental illness such as anxiety or depression, may now put in a request. However, it is necessary for the employer to take steps to determine whether or not it is a legitimate condition, whether it be through requesting medical documentation or through the interactive process. Determining the disability will be vital in making sure that it falls under the ADA’s definition and therefore qualifies for reasonable accommodation, absent undue hardship. The EEOC does highlight that the circumstances of the pandemic may change the company’s level of undue hardship and an accommodation they may have been able to provide prior to the virus, may not still be financially feasible or sustainable today.

“Critical infrastructure workers” and “essential critical workers” are all still very much covered by the ADA and the Rehabilitation Act, and all other equal employment opportunity law. Employers that receive disability requests from critical and essential employees must process them as they would any other employee. The only determining factors in their eligibility will be dependent on whether or not they have a disability, and if there is a reasonable accommodation that can be set into place for them, without incurring undue hardship on the employer.

Hiring and Onboarding

Many questions have come up regarding COVID-19 testing and screening for job applicants, pre-offer and pre-employment medical exams, start-date delays and job offer withdraws because of COVID-19. We will cover all of these concerns here and more info on this topic can be found at Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Much of this information from the EEOC has been transferred over from the H1N1 outbreak but has since been updated and modified to fit into our unique circumstances today.

The only time the ADA prohibits an employer from screening, testing, conducting a medical examination or inquiring about disability to an applicant is prior to a conditional offer of employment being made. After a conditional offer is made, the employer may do all of the above under the ADA, as long as they are doing so for all other employees in the same type of job. During active employment, the ADA prohibits an employer from making disability-related inquiries or conducting medical examinations unless they are directly job-related and consistent with business necessity. The EEOC says that, generally, disability inquiries and medical examinations are job-related and consistent with business operation necessity when the employee’s ability to perform their essential job function will be impaired by a medical condition or an employee poses a direct threat due to a medical condition. If either of these are satisfied, then an employer may conduct pre-employment, post-offer medical examinations, screenings or testing and inquire about disability. The EEOC and CDC both want to make employers aware that while post-offer temperature screenings are permitted, not all COVID-19 positive people have a fever or show any symptoms at all.

The EEOC does yield to CDC recommendations, therefore, employers are permitted to delay start dates due to COVID-19 and due to any potential symptoms, the applicant may be showing. Employers may also withdraw job offers if the applicant has COVID-19 or is showing symptoms, as they cannot safely enter the workplace under CDC guidance. It may be beneficial at that point for the applicant to voluntarily be tested and present documentation to the employer, showing that they are negative or immune.

Pandemic-Related Harassment in the Workplace

With COVID-19 creating a stressful environment for many, sometimes fear can be misdirected to individuals with protected characteristics like national origin or race. The EEOC provides tools, especially for small businesses, that can help them navigate such a situation. They recommend, at minimum, that employers verbally communicate to their employees, a zero-tolerance policy for pandemic-stigma related harassment and relay to employees that it is illegal under federal law to harass or discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. The EEOC also provides policy tips for employers that digs into how employees can report harassment, confidentiality policies, protection from retaliation and corrective and preventative action. The EEOC also provides checklists for employers looking to implement a structured and holistic harassment prevention program, policy, reporting system and investigation plan.

The EEOC outlines many more employment-related updated guidelines to refer to during this time. Some of the other topics they cover are furloughs and lay-offs, returning to work, confidentiality of medical information, and much more.