Latest Guidelines from the EEOC Regarding COVID-19 and Antidiscrimination Laws

The EEOC has been sharing guidelines for complying with antidiscrimination laws while following CDC, state, and local public health recommendations during the COVID-19 global pandemic. The EEOC began by updating its publication, “Pandemic Preparedness in the Workplace and The Americans With Disabilities Act,” in late March of 2020 to address specific concerns. Since the Americans with Disabilities Act limits an employer’s ability to require medical exams or inquire about disability related topics, prevents employers from discriminating due to disability status, and requires them to make reasonable accommodations for employees with disabilities during a pandemic, many employers are left wondering how to ethically and safely address current concerns. The National Law Review summarizes important takeaways from the EEOC’s publications in a recent article, which is discussed below.

The National Law Review article, “EEOC Updates Guidance on COVID-19 and Compliance with Antidiscrimination Laws,” confirms that employers are permitted to screen employees for Coronavirus symptoms defined by the CDC and public health authorities. This is because people infected with the Coronavirus pose a direct risk to others in their proximity. That said, results must be kept confidential in a manner that complies with the ADA. Still, according to the EEOC’s updated article, potential hires may not be screened prior to a conditional offer of employment. Once a conditional offer of employment is given, employers may conduct screenings and make disability-related inquiries as long as this is done for all entering employees for a given job category. In other words, employers may not subject a single new hire to inquiries and screenings based on suspicion.

The National Law Review also explains the EEOC’s guidance for providing reasonable accommodations to employees with preexisting disabilities during the pandemic. The ADA requires employers to provide reasonable accommodations to individuals with disabilities as long as doing so does not pose undue hardship on the organization. This would include accommodations that could prevent an individual with a compromised immune system from contracting the virus. In many cases, employees have been working at home due to stay at home orders, but this should be an option even when doing so is not mandated by law. That said, not all jobs can be done remotely. If working from home is not an option, individuals with disabilities and their employers should explore alternative precautionary measures. The article specifically recommends inexpensive solutions such as installing plexiglass barriers and temporarily assigning alternative projects that can be completed at a safe distance from others. Keep in mind that company wide changes made to stop the spread of the virus can result in the need for additional accommodations. Once again, these accommodations must be made unless doing so would cause undue hardship.

As a final note, the EEOC and National Law Review point out that other problems with discrimination and harassment have been heightened during the pandemic. Microaggression has been directed towards individuals who were assumed to be a Coronavirus threat due to their race, ethnicity, or nationality. The recent spike in layoffs has also brought up legal concerns about offering severance packages in exchange for a general release of all discrimination claims against an employer. It is recommended that employers consult the EEOC’s technical assistance document on severance agreements for legal guidance. Employers must not lose sight of laws that protect individuals from discriminatory employment practices during these unprecedented times. It is critical that they act with integrity to protect their organization.