EEOC Issues Revised Pandemic Guidelines for Employers

The Equal Employment Opportunity Commission (EEOC) has issued revised pandemic guidelines for employers effective September 8, 2020 (“What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”). The revised guide includes 18 new questions and answers adapted from other agency guidance (revision dates are noted throughout) and has updated existing Q&As, including:

Q&A A6: Clarifies position on employers administering COVID-19 tests before permitting employees to enter the workplace, either initially or periodically, with testing consistent with federal guidance.

Q&A D8: Clarifies 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, and to begin the interactive process when the advance request is received.

Q&A D15: Employers that granted telework as a reasonable accommodation during the pandemic do not have to automatically grant the same accommodation to every employee once the workplace reopens. “Fact-specific determinations” would have to be taken into consideration, such as whether the employer permanently changed a job’s essential functions, whether telework is always a feasible accommodation, or whether telework poses an undue hardship.

Q&A D16: If an employee who was denied telework as a reasonable accommodation before the pandemic because of concerns he or she would not be able to perform the essential functions remotely was then allowed to temporarily telework during the pandemic, he or she may then request telework after the workplace reopens. The pandemic period may then serve as a trial period to determine feasibility of telework and should be taken into consideration during the interactive process.