The pandemic has created a variety of obstacles for employers to overcome in keeping people safe at work or even knowing what is an appropriate way to do so.
Being a public health crisis, this situation opens up a range of issues regarding employee privacy and compliance with regulations regarding the safety of health information. The Equal Employment Opportunity Commission (EEOC) recently published new guidelines for employers looking to bring people back to work.
While many companies have shifted to remote work until the pandemic ends and others are looking to make that move permanent, some employers want to get people back to working in more traditional settings. Whether that’s through a hybrid model or simply re-instating the regular work schedule, there are a host of factors for those companies to consider in doing so.
Of particular interest to the EEOC is compliance with the Americans with Disabilities Act and how that fits with employers also complying with guidelines from the Centers for Disease Control and Prevention (CDC).
Asking Healthy Questions
The Americans with Disabilities Act requires that health information be kept private, including whether or not an employee has COVID. However, this does not mean that employers can’t ask necessary questions about the employees’ health in keeping with CDC guidelines to screen employees before entering the workplace.
This includes asking employees whether they have symptoms, have come into contact with people who have symptoms and where they have traveled. Some critical elements of the guidance to note include:
- Questions must be asked of all employees, unless the company has reason to believe, based on objective evidence, that a specific individual has the virus.
- While employers can ask questions about contact with people who have had the virus, the Genetic Information Nondiscrimination Act (GINA) prohibits employers from targeting questions toward an employee’s family members specifically.
Further considerations include the storage of information derived from asking employees such questions. That data, along with results of temperature checks and any other preventative measure should be stored in the employee’s health information file.
If it is determined that an employee has or may have come into contact with the virus, employers are within their rights to require that the person stay home.
Technology and Reasonable Accommodation
For employees with disabilities, returning to work during this time can be difficult or could cause significant risks to their health should they have an underlying condition. This brings into the question of reasonable accommodation which is not as simple as just letting people work remotely.
Reasonable accommodation often comes down to the technology available and the type of work a person does. If the employee does not wish to come back to work due to fear of contracting the virus and the company does require their in-person presence for the work to be done, then that would fall under the reasonable accommodation guidelines as long as the person can provide a note from their physician justifying the need for accommodation. However, if the work cannot be done, then the employer is within their rights to determine that remote work is not a reasonable accommodation for that individual.
If the person has a disability, the case should be reviewed and discussed with the employee based on a few factors, such as whether their commute increases their risk or the work environment presents inherent dangers for them. The guidance strongly recommends documentation of any efforts to address employee concerns in denying remote work as a reasonable accommodation.
Once a return to normal working conditions is completed, employers are not required to grant remote work as an accommodation to just anyone, regardless of whether the employee has had a successful remote work period or their work can be done remotely.
What About Customers?
The ADA was written at a time when lawmakers couldn’t have imagined the tremendous influence that technology would have on the way that we work and live. The business itself may have an issue if it has increased the use of web based tools in offering its services and those tools are not accessible online for people in, for example, blind or deaf communities. Be sure to review all of the company’s assets to ensure compliance with ADA guidelines.
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