By Attorney Brian G. Formella, Anderson O’Brien Law Firm
The Equal Employment Opportunity Commission (EEOC) has updated its guidance, as of April 17, 2020, to assist employers in responding to the COVID-19 pandemic in the workplace. See www.EEOC.gov.
Ordinarily, an employer is prohibited by the Americans with Disabilities Act (ADA) from asking an employee who calls in sick about the specific symptoms he is experiencing. During the pandemic, however, the EEOC states that employers may ask employees who call in sick if they are experiencing symptoms of the novel coronavirus. Employers must maintain all information about an employee’s illness as a confidential medical record.
In addition, the EEOC expressly recommends that employers refer to the Centers for Disease Control and Prevention (CDC) and state or local public health authorities about steps employers should take regarding COVID-19. Employers are advised to stay abreast of the most current information on maintaining workplace safety.
EEOC Addresses Mental Illness Made Worse by the Pandemic
The EEOC’s guidance includes consideration of an employee’s pre-existing mental illness or disorder that has been made worse by the COVID-19 pandemic. The issue is whether an employee with a pre-existing condition may now be entitled to a reasonable accommodation under the ADA. In response, the EEOC advises that although many people feel significant stress due to the pandemic, employees with pre-existing mental health conditions, such as anxiety disorder, obsessive compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the pandemic.
As a result, an employer should address the mental illness as it would any other accommodation request under the ADA. Specifically, the employer may ask questions to determine whether the condition is indeed a disability and discusses with the employee how the requested accommodation would assist him and enable him to keep working. The employer and the employee may also explore alternative accommodations that may effectively meet his needs. Medical documentation may be requested by the employer, if needed.
The bottom line for employers is to remember that although an employer may gather additional health-based information from its employees during a pandemic, the basic principles of non-discrimination and reasonable accommodation in the workplace continue to be mandatory principles under the law. For further information concerning specific situations, contact your Anderson O’Brien attorney.