Friday, May 8, 2020

Update and reminder: EEOC guidance on COVID-19 and the ADA

The EEOC updated its guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. See G.3 and G.4 for new guidance on handling employees who have medical conditions that the CDC says may put them at higher risk for severe illness. In particular, the ADA may require that employers reasonably accommodate such employees if they request an accommodation. On the flip side, some employers are concerned about allowing such people back to work (out of concern for the health or safety of the employee. Can the employer exclude them? Generally not - unless their condition poses a "direct threat" to their health that cannot be eliminated by a reasonable accommodation. 

As businesses begin to reopen their physical locations, employers may also be interested in the prior guidance regarding employees who cannot wear masks:
G.2. An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests? (4/17/20)

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII.
Stay tuned. As we shift gears to the re-opening phase, no doubt more issues will pop up (and so will more guidance).  

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