Ever since COVID-19 went on to disrupt the workplace of millions, the U.S Equal Employment Opportunity Commission (EEOC) has tried to offer guidance to both employers and employees through the publication of online resources, specifically EEOC’s “What You Should know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.”
The EEOC went on to update their online document this month offering additional guidance on a number of relevant issues like office reopening procedures, teleworking accommodations, and COVID-19 screening of employees.
With more and more offices reopening, some workers might want to continue requesting telework while employers must make the decision whether to grant it or not. It is important for both employer and employee to understand the Americans with Disabilities Act (ADA) in making their decisions. Under the ADA an employer must provide reasonable accommodation to an employee with a disability that will allow them to do their job, unless the requested accommodation poses an undue hardship.
Therefore, in accordance with the ADA, the guidance the EEOC provides states that an employer does not need to “automatically” grant telework accommodation to all the employees who request it. Instead, the EEOC wants to make it clear that if an employee does not have a disability-related limitation that requires them to be working remotely then they are not entitled to be accommodated. Moreover, if that employee does indeed have a disability-related limitation, but this limitation can be accommodated through other means besides telework, then the employer can choose whether to grant them telework or another option that would also accommodate them.
In their updated guidelines the EEOC also state that due to the disruptive nature of COVID-19, they acknowledge that there can be an excusable delay to the interactive process. The EEOC, recognizes that a delay can occur due to the high number of increased requests ever since the start of the pandemic.
When it comes to COVD-19 screening the EEOC wants to also let employers know that they must be careful not to violate the Genetic Information Nondiscrimination Act (GINA). GINA specifically goes on to protect workers from being discriminated by their employers on the basis of their genetic information. Thus, in the time of COVID-19 the EEOC recommends for employers to not ask employees if they have family members with COVID-19 symptoms, as this could be seen as a violation of the Genetic Information Nondiscrimination Act. To be safe, the EEOC, recommends that employers instead ask workers if they have had any close contact with individuals that have presented COVID-19 symptoms, as this would also include household members.
The EEOC updated guidelines also go on to reaffirm that if an employee refuses to go through the screening process, like not wanting to have their temperatures taken, then the employer may prohibit that employee from going into work.
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