Carissa Davis

The EEOC notes that to safeguard health and safety, and consistent with the ADA, employers are permitted to make some disability-related inquiries and/or conduct medical examinations in the face of a pandemic. The inquiries or exams must be consistent with business necessity, i.e. necessary to identify employees whose presence would pose a direct threat to health and safety, such as a COVID-19 infection. For example, a restaurateur may wish to take the temperatures of food service workers or require employees to answer COVID-19-related questions before they report to work. These exams and inquiries are generally acceptable so long as they are not applied in a discriminatory manner or elicit unnecessary private information.

In the coming weeks, some state and local governments will modify or lift stay at home orders. Businesses will reopen, and employers who implemented work-from-home policies may recall employees to the workplace. The Equal Employment Opportunity Commission (“EEOC”) recently noted issues that might occur when employees return to work.

Once employees return to work, some employers may require them to wear personal protective equipment such as masks or gloves, and most employers will require adherence to hand washing or social distancing protocols. The EEOC notes that these measures do not relieve employers of the obligation to provide reasonable accommodations for qualified individuals with a disability. For example, some employees may be allergic to latex gloves, and others who rely on lip-reading may be unable to understand coworkers who are wearing masks. Title VII also requires employers to provide reasonable accommodations for religious beliefs and practices. For example, an employer may be required to provide modified gear to accommodate religious garb. If an employee raises concerns about protective gear or infection control practices, the employer should engage in the interactive process to identify a proper accommodation that does not impose an undue hardship on business operations.

As employees reenter the workplace, employers should remain attentive to developments in federal, state, and local guidance, and should ensure that accommodation decisions are made on an individual basis.