The evolving nature of the COVID-19 pandemic continues to present challenges to employers seeking to keep their employees and customers safe while also remaining in compliance with the law. The Equal Employment Opportunity Commission (“EEOC”) has recently issued updated guidance to employers on their obligations under the Americans with Disabilities Act (“ADA”) that seeks to answer common questions about how COVID-19 interacts with the federal law.
Much of the EEOC’s updated guidance centers on the balance between employee confidentiality under the ADA and an employer’s interest in maintaining a safe workplace. For example, an employer may ask all employees that enter the workplace if they have been tested for COVID-19 or if they have any symptoms associated with the disease. However, an employer should not reveal the identity of an employee who has contracted COVID except to persons who need to know within the organization and to appropriate health authorities. Essentially, an employer should safeguard the confidentiality of its employees’ medical information to the fullest extent possible while remaining mindful about protecting the health of its other employees.
The updated EEOC guidance also addresses the ADA’s requirement to engage in the reasonable accommodation process for employees with disabilities in the age of COVID-19. As with any other disability, an employer need not provide an accommodation if it would excuse the employee from an essential function. Consequently, an employer need not provide telework as an accommodation if it prevents the employee from performing an essential function of his or her job. This is true even if the employer had previously allowed for telework during a COVID-19 related shutdown of the workplace. Still, the employer should engage in the same interactive accommodation process with the employee as required under the ADA.
These are just a few examples of common issues for which employers have sought direction from the EEOC. While Ohio and other states have sought to limit exposure to employers for COVID-19 related lawsuits, these state laws do not affect an employer’s obligations or exposure under federal laws like the ADA. Consequently, it is critical for employers to continue to stay knowledgeable on their responsibilities under the ADA and other federal law during the pandemic.
If you would like further clarification on this new guidance, please reach out to your contact at Mansour Gavin or one of our Labor and Employment attorneys.