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How the U.S. Equal Employment Opportunity Commission (EEOC)’s guidance on the Americans with Disabilities Act (ADA) can help you keep your employees safe, explained by James Venable, Esq., SPHR and Sue Woods, Esq.

Transcript:

Welcome to our weekly podcast. I’m your host, James Venable. I’m the Vice President of Compliance and Employment Law for ReedGroup, a Guardian company. And joining me is Sue Woods, our Senior Compliance Counselor at ReedGroup.

Hi, James. Thank you for including me today. Great. Our weekly podcast will bring you quick, easy to understand information about COVID-19 and help you better manage your business. This week we’ll share the top five takeaways from the EEOC’s new guidance on the ADA and COVID-19.

So Sue, let’s talk about the new guidance from the EEOC. There’s a lot of information out there for business owners and it’s easy to get overwhelmed. And we’ve got all this talk about reopening some workplaces. How did these guidelines come into play?

That’s a great question, James. So the EEOC just recently updated its guidance specifically related to ADA concerns, that’s under the Americans with Disabilities Act, and how the ADA would interact with the COVID-19 related matters that employers need to deal with in the workplace. So I know we’ve been getting a lot of questions about COVID-19 in the workplace, so hopefully we can help offer some of the guidance from the EEOC as it relates to the ADA here.

Absolutely. And I know some of those questions are ones that people have concerns about causing legal exposing and the legal liability, for example, is it OK to take the temperatures of your employees? And as I said earlier, that’s kind of one of the things they’re going to have to look at because we’re talking about people returning to work.

Absolutely. I totally agree. I think that’s a question on the forefront of a lot of employers’ minds right now. And potentially good news for employers is that the EEOC has said yes, it’s OK for employers to take employees’ body temperatures before they enter the workplace.

Prior to this guidance coming out, I think employers were a bit worried that they would open themselves up to legal exposure under the ADA if they did take temperatures because that can be deemed a type of medical exam. And the ADA has very specific rules about when you can and cannot conduct medical exams on existing employees. It has to be limited to situations where the exam is job related and consistent with business necessity. So by following the guidelines and recommendations from the CDC and the state and local health authorities, the EEOC is recognizing that because having a fever is a frequent COVID-19 symptom, that it is a proper thing for employers to do in this circumstance to be able to monitor employees’ temperatures before they enter the workplace without violating the ADA’s medical exam rules.

Wow, interesting. So it’s OK to take temperatures as long as the records of them are confidential. And that sounds like a safety precaution for many owners that are already taking that.
But the second thing everyone wants to know about– and surprisingly enough, some employers are still hiring at this point– can business owners delay hiring someone or withdraw a job offer because the candidate has COVID-19 symptoms?

Yeah, that’s something on the forefront of minds of those that are hiring right now, especially because they may have interviewed and made some job candidate selections prior to the COVID-19 pandemic. So now employers are wondering what they should do with these applicants who’ve been selected for jobs.

The EEOC addressed that recently in this guidance to say, hey employers, it’s OK to delay the start date for an applicant who has either been diagnosed with COVID-19 or has COVID-19 symptoms. Now in a situation where an employer needs to fill a job position immediately and can’t wait for this delayed start date, then the EEOC says it’s perfectly OK for an employer to actually withdraw an existing job offer if that individual chosen for the job does have COVID-19 or its symptoms. So that’s kind of an interesting take.

On the flip side, however, the EEOC cautions employers to say, look, don’t postpone a start date or a job offer just because someone may be at higher risk of contracting COVID-19. So for example, if you have a pregnant applicant or an applicant who’s been selected for a position who’s older, perhaps 65 years or older, just because they may be at higher risk, which hasn’t necessarily been proven, you cannot withdraw a job offer or postpone their start date just because of that category that they may belong to.

Now, in addition, it’s possible that if you have a higher risk candidate and the candidate and the employer want to agree to postpone their start date, that’s OK because they’re both agreeing to it, or other methods of limiting the exposure for a high risk individual is also acceptable. But we do want to remind employers that they can only screen job applicants for symptoms of COVID-19 after a conditional job offer has been made, and only in situations where the employer has screened all entering employees in that same job type.

Interesting. And I think that’s going to allow a lot of employers to breathe a sigh of relief. And I think it also give the other employees in the workplace some sense some comfort that whoever is sitting next to them has been tested or at least checked out by the employer. So it sounds like they’ve got a lot of options.

One of the other things to remember about COVID-19, that there may be some pre-existing conditions that actually might be worse now. And what is the EEOC say about people or employees who are struggling with mental disorders? Because we’ve heard a lot about people having anxiety, and even when we get the clear for people to return to work, you might still have some folks who are scared to come in, and it’s actually exacerbating some preexisting mental condition that they have already.

You’re absolutely right, James. And the EEOC did offer some guidance in this area, which I think will be very welcome for employers. And what they basically said is that employees who have a pre-existing mental health condition, perhaps it’s anxiety disorder, post-traumatic stress disorder, or even obsessive compulsive disorder, they recognize that those individuals may have more difficulty handling stress and the disruption to our daily lives that has been caused by the whole COVID-19 pandemic. So if an employee does have a pre-existing mental health condition and they request an accommodation, employers should go about the full interactive process that they normally do under the ADA in order to determine whether there is a reasonable accommodation that could be available to this employee, absent and undue hardship.

And the EEOC even goes so far as to give some potential examples of accommodations, things that are kind of low cost solutions that employers might be able to implement to help reduce the stress on these employees when they do start returning to the workplace. And it can be something as easy as using some plexiglass to separate employees from each other or from themselves and customers. It could be other types of barriers or even tables that are used to minimize distances between each other, or modifying employees’ work schedules so that there aren’t as many people in the workplace at the same time. So these are some unprecedented times for sure, and the EEOC really wants employers to try to be creative and remain as flexible as possible.

So it sounds like a lot of the things we’re seeing right now as we go into certain stores, with the plexiglass and the spacing of the chairs, even when we get the OK to reopen and do business, some of these things are going to still be around for us to kind of to deal with. I know a lot of employers have completely changed the way that they do business to stay afloat and to protect their employees. So it really is good to know that there are some efforts to make sure that the employees’ mental health is taken into consideration.

One way to do this is to come up with a plan for bringing employees who had COVID-19 symptoms back into the workplace. Does the EEOC address this issue in any way? Do they have any guidelines that might be helpful for when an employee comes back to work after being sick?

Yeah, absolutely. The return to work issues I think are very top of mind for many businesses right now. As you mentioned, cities and states are starting to talk about lifting the stay at home orders and so folks will start going back to work. And so employers need to know what they can and cannot require as employees do return to work if they have been diagnosed with the COVID-19 disease or if they have exhibited symptoms.

Under the ADA, employers may require that a health care provider certify that an employee who has had COVID-19 or symptoms is fit to return to work. This type of inquiry is allowed under the ADA because it’s not directly disability related, and because the pandemic could be sufficiently severe, it would still be justified as a requirement. But that said, the EEOC also recognizes that these are unusual times.

And so from a practical standpoint, employees may very well struggle to provide a fitness for duty certification because health care providers are too busy dealing with the pandemic right now. So the agency does recommend that employers consider alternative approaches, things such as accepting an email from a provider rather than requiring a full certification form to be filled out, or even relying on a local clinic to stamp a form, those sorts of things. So again, it goes back to employers needing to be creative in order to get their employees back to work safely.

That’s a good point. I think we’re taking for granted, or at least we may take for granted the fact that businesses are opening up doesn’t mean that that caseload at the hospital down the street is going to be any more available to provide you a certification. So it’s definitely something that employers are going to have to consider when seeking that documentation.

One last question, and it’s about keeping medical information confidential. And in normal times– and obviously, these aren’t normal times. Medical information about a specific employee is usually kept separate from that employee’s personnel file. And employers typically are aware of this. But what about information related to COVID-19? How are employers supposed to handle that?

Well, generally, the COVID-19 related medical information should still be kept confidential, just like other medical information. So whether an employee has been diagnosed with COVID-19 or its symptoms, whether the employer has taken employee statements regarding symptoms, or they have temperature logs or other sorts of records of having taken temperatures, or certification forms, all that sort of medical information should be stored in a confidential manner, and that should be separate from an employee’s personnel file.

Now the COVID-19 related information may be included in an employee’s medical file along with, say, past medical information, but again, should not be kept with a regular personnel file. As far as a related topic is about the confidentiality about a particular employee who may have been diagnosed with COVID-19. And in that case, the EEOC has stated that an employer may disclose an employee’s name who has been diagnosed with COVID-19 only to a public health agency, or if it happens to be a temporary staffing agency or contractor who has placed an employee in another workplace, then that temp staff agency or contractor may reveal the name of that employee with COVID-19 so that the end user employer may determine if the temporary worker had contact with others in their workplace. But beyond that, the actual name and specifics about specific employees in the workplace who may have been diagnosed with COVID-19 should be kept confidential.

And finally, James, you know, just some additional guidelines that the EEOC provided, they really encourage employers to continue monitoring the most current information on maintaining workplace safety, whether that information comes from the CDC, the World Health Organization, OSHA and state and local public health authorities, employers should really try to keep up to date on all of that. And something we always recommend, and I’m sure you’d agree with, is that if employers are in doubt, they should consult with their own legal counsel on these issues.

Yes, absolutely. And because there are probably going to be more rules and regulations and guidelines from the agencies, there’s probably going to be more of a need to have those types of resources available so that you can make the right decisions as an employer. So thanks very much, Sue. This was really helpful information. I think a lot of employers will breathe a sigh of relief having some more information to kind of work with as they start to bring people back.

We also want to thank you for tuning in. And we hope you’ll join us for our next podcast for the latest updates related to COVID-19.

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Information provided on this podcast is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.