On April 23, 2020, the federal Equal Employment Opportunity Commission ("EEOC") issued updated guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws ("Guidance").
This Guidance provides technical assistance in a Q&A format designed to assist employers with implementing COVID-19 workplace protection procedures without running afoul of the Americans With Disabilities Act ("ADA") and other worker protection laws. Employers should review this Guidance to ensure that their COVID-19 mitigation plans are legally compliant.
Although the EEOC states that the ADA and other laws continue to apply during the COVID-19 pandemic, the EEOC makes clear that such laws are not intended to "interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19." The EEOC also emphatically states that "[e]mployers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety."
The Guidance is divided into seven sections: (A) Disability-Related Inquiries and Medical Exams; (B) Confidentiality of Medical Information; (C) Hiring and Onboarding; (D) Reasonable Accommodation; (E) Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics; (F) Furloughs and Layoffs; and (G) Return to Work.
In practice, employers may face complex judgment calls about balancing health and safety issues, state and local government orders, and the need to comply with federal laws. As we have written in other Alerts, employers who implement safety standards consistent with state and local orders should still consider the requirements of other employment laws, including the ADA. The new guidance from the EEOC does not change the fact that compliance with a state or local order by itself may not be an effective defense to a claim of discrimination under the ADA or other federal laws.
For more information:
- EEOC's Updated Guidance of April 23, 2020 - https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
- Schnader's Alert, "The EEOC's Coronavirus Guidance Amid Uncertain Times" (March 19, 2020) - https://www.schnader.com/wp-content/uploads/2020/03/The-EEOC%E2%80%99s-Coronavirus-Guidance-Amid-Uncertain-Times.pdf
- Schnader's Alert, "How Can Pennsylvania Employers Comply with State Health Orders in Light of the EEOC's Updated COVID-19 Guidance? (April 24, 2020) - http://www.schnader.com/wp-content/uploads/2020/04/Complying-with-the-ADA-and-PA-Health-Orders-for-COVID-19-4-24-20.pdf
Originally published 29 April, 2020
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