EEOC Updates COVID-19 Technical Assistance Publication to Assist Employers with COVID-19 and EEO Laws

Guidance adds 18 new questions and answers and provides links to two new agency resources

On October 8, 2020, the EEOC published an update to its “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The update incorporates information from other agency resources, adds 18 additional questions and answers and modifies two previously listed questions and answers. In the updated version, EEOC “clarifies its existing position on employers’ authority to invite employees not currently in the workplace to request disability accommodation in advance of their expected return if they choose to do so.” The updated guidance includes the following:

• Employers have the same requirement to engage in the interactive process in advance of a return to the physical workplace request, even when the company has not yet set the reopening date.
• Providing accommodations may be an undue hardship or may not be feasible when the remote work is temporary or of an unknown duration.
• When evaluating the reasonableness of an accommodation request to work remotely, remote work experience due to COVID-19 may be relevant. EEOC says that COVID-driven remote work may serve as an informative “trial period” showing whether the employee was able to “satisfactorily perform all essential functions while working remotely.”
• Employers need to remember that only disability-related limitations may necessitate accommodations.

It also elaborates on its position about employers administering COVID-19 tests before permitting employees to enter the workplace. Essentially, EEOC added the word “considered” in its instructions for employers administering COVID-19 tests to employees. Employers are now told to “ensure that the tests are considered accurate and reliable.”

The two additional agency resources include:

• Pandemic Preparedness in the Workplace and the Americans with Disabilities Act

• “Ask the EEOC” webinar held on March 27, 2020