Mary Kate Liffrig: Hello and welcome to Hall Render’s HR Insights for Healthcare Podcast, covering labor and employment law cases and trends, for professionals working within the healthcare industry. I’m Mary Kate Liffrig.

Dana Stutzman: And, I’m Dana Stutzman.

Mary Kate Liffrig: Dana and I are attorneys with Hall Render, the largest healthcare focused law firm in the country. We both practice employment law and regularly advise healthcare clients on a variety of labor and employment law topics. Please remember, the views expressed in this podcast are those of the participants only and do not constitute legal advice.

Mary Kate Liffrig: So, Dana and I are here today to talk about COVID-19 and specifically some of the workplace nondiscrimination questions that can arise during the COVID-19 pandemic. So Dana, just to start us off, do you want to give us a real quick background on the nondiscrimination laws that we’re going to be talking about today?

Dana Stutzman: Sure, happy to explain. And actually, I think even before I start off with the start off, I first want full disclosure, we are podcast recording this while sheltering in place from our respective homes. So it’s entirely possible that this podcast could get interrupted with spouses, pets, children, screaming, doors slamming, what have you. If that happens, we’re going to continue to roll with it. We hope you bear with us. Our marketing folks will, I’m sure, try to do their best to edit out the distractions but there may be some things that slip through the cracks. So, hope that that doesn’t put anybody off out there.

Dana Stutzman: But, back to the subject at hand, there are a handful of federal laws that prohibit discrimination, based on a number of different protected characteristics. The Equal Employment Opportunity Commission, also known as the EEOC, is a federal agency that enforces those laws. And during the pandemic, EEOC, along with a lot of other regulatory agencies, has been very active in terms of providing and updating its regulatory guidance during the pandemic. Sometimes it’s on a weekly basis, sometimes it’s even on a daily basis.

Dana Stutzman: So in terms of the EEOC, they’ve provided guidance to remind employers that the nondiscrimination rules still apply, even in a pandemic. Which means and I’d say viewed from 50,000 foot level, employers need to watch out for disability discrimination, which is covered by the ADA, asking questions about employees’ family members’ health because that implicates both the ADA and the Genetic Information Nondiscrimination Act, otherwise known as GINA. Employers need to be mindful and watch out for pregnancy discrimination, which falls under Title VII.

Dana Stutzman: You need to be careful about race based stereotyping. For example, some of the race based stereotyping, that’s been in the news as of more recently, is some of the anti-Asian activities because the origin of the COVID-19 is from China. So some race based stereotyping was occurring along those lines. And then finally, the other area to watch out for is age discrimination because age is a characteristic under the federal age law, otherwise known as the Age Discrimination in Employment Act or ADEA, for short.

Mary Kate Liffrig: Yeah. And so, the EEOC has provided several forms of guidance for employers to help employers interpret these various nondiscrimination laws, as they particularly apply in this unprecedented COVID-19 situation. Specifically, the EEOC has issued a guidance document. They issued a pandemic preparedness document back in 2009, which they then updated in March 2020, as a result of the COVID-19 pandemic. And then, on March 27th the EEOC posted an outreach webinar responding to employer questions related to COVID-19.

Mary Kate Liffrig: And, the EEOC has also issued technical assistance, which they’ve updated pretty frequently over the last several weeks to add additional information for employers. And so, we’ll post links to all of those documents in our show notes, if we can figure out how. So Dana and I thought we could walk through some of the questions that the EEOC has answered in their guidance. And, we can’t hit on everything and the time we’ve got but we’ll try and hit the highlights.

Dana Stutzman: Right. And before we get rolling, I think it’s important to note that the public health situation with COVID-19 continues to evolve and as that situation evolves, EEOC guidance is going to continue to evolve, as well. As I said before, it sometimes is getting updated on a weekly basis or even more frequently than that.

Dana Stutzman: The EEOC has stated many times that the laws it is enforcing, do not hinder employers from following COVID-19 guidance from the CDC and from state or local public health authorities. So it’s actually kind of a lot for employers to juggle all at once. Do the best you can. Try and keep up with the guidance that’s being issued by the CDC, by state authorities, local authorities, in terms of how to maintain workplace safety.

Dana Stutzman: And then also, at the same time, try your best to keep up with EEOC guidance, in terms of how to comply with equal employment laws during the COVID-19 pandemic. For what it’s worth and just for frame of reference, the content that we’re sharing today is up to date, as of the date that we’re recording this podcast, April, 27 2020.

Mary Kate Liffrig: Thanks Dana. And, we also want to note that we’re just talking today about the federal equal employment laws, not talking about state and local laws. We’re not going to hit on the federal wage and hour issues or federal leave laws, like the FMLA or paid leave laws created by the Family’s First Coronavirus Response Act. We’re not hitting on things like OSHA, right now we’re really just talking about the ADA, ADEA, Title VII, including the PDA and GINA. So I think that’s all of the introductory information here. So without further ado, Dana, do you want to kick us off on some of these FAQs, that EEOC has issued?

Dana Stutzman: Sure. Yeah, happy to. So one question that the EEOC has addressed and they’ve actually addressed it in a couple of different places, is whether the COVID-19 pandemic permits an employer to take the temperature of employees who are coming into the workplace. And, if there’s anything else an employer could do at the current time, to determine if employees physically coming into the workplace have COVID-19 or symptoms associated with the disease.

Dana Stutzman: Short answer, yes. You can ask all employees. And again, I’m emphasizing all. You can ask all employees, who are physically entering the workplace, if they… Excuse me, if they have COVID-19, if they have symptoms of COVID-19 and if they’ve been tested for COVID-19. Quick side note, that comment about you can ask them specifically if they have COVID-19, that was something that was specifically addressed in the EEOC webinar. It was previously unclear under some of the pandemic guidance, if that was an okay question to ask. So in the webinar, that was one helpful nugget that the EEOC address directly. Yes, it is okay to ask your employees, when they’re physically entering, do you have COVID-19. So helpful information there.

Dana Stutzman: Along those lines, employees with symptoms may be prohibited from the workplace because, according to the EEOC, they pose a direct threat to the health and safety of others. However, one practical point to watch out for employers, you are not allowed to ask similar questions of employees that are teleworking because they are not physically interacting with other employees. So it would not be okay to run through those of questions with a respect to your workforce that is sheltering in place, working from home.

Dana Stutzman: Also, I think I did comment and highlight the fact that we’re talking about all employees who are physically entering the workplace. Meaning, don’t be selective of a particular subset like older employees or pregnant employees or employees of a particular national origin. That would not be a good thing. It looks like you’re starting to single out and discriminate for whatever reason. So okay to ask, make sure you do it to all employees who are physically entering the workplace.

Dana Stutzman: One other comment I mentioned above, it’s okay to ask if they have symptoms of COVID-19 and I think effective right around today, April 27, the CDC updated the list of symptoms that go along with COVID-19. Here they are, fever, cough, shortness of breath or difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat and last but not least, new loss of taste or smell. So that’s the latest and greatest COVID-19 symptoms, as per CDC guidelines on or around April 27, 2020.

Dana Stutzman: Another point, the EEOC has also explained more recently that it is okay for employers to administer a COVID-19 test. On that one though, be careful because there are certain caveats and conditions that employers need to follow before you can do that. So on that point there, I would recommend reaching out to counsel before you decided to go down that path.

Dana Stutzman: Also, you can ask your employees if they have been in contact with anyone that has been diagnosed with or has symptoms of COVID. And in a nutshell, that’s how you ask the question, that’s how you find out about COVID in the employees household. Meaning, and this is what the EEOC has said, it is not okay to say to an employee, does anyone in your family have COVID? Because that question gets cross wise with the GINA law, you need to ask it more broadly. Which again the question is, have you been in contact with anyone that has been diagnosed with or has symptoms of COVID? There you’re not asking specific about family diagnoses, so the EEOC says, “If you’re asking broadly, that part’s okay.”

Mary Kate Liffrig: And so, so it sounds like we’ve got pretty broad authority to ask questions and perform some testing, as it relates to allowing employees back into the workplace. And so, the follow-up on that is, is the question, okay, well happens if the employee doesn’t comply? And, EEOC has addressed that, as well. They’ve said that the ADA allows an employer to bar an employee from physical presence in the workplace if the employee refuses to answer questions about whether they have COVID-19 or symptoms associated with COVID-19 or if they’ve been tested for COVID-19. As well as, the ability to bar an employee’s presence if they refuse to have their temperature taken.

Mary Kate Liffrig: That said, from a very practical perspective, the EEOC also suggests that employers perhaps ask their employees for the reason for their refusal. Right? If they’re coming into the workplace and they’re saying, “No, I’m not going to answer these questions about whether I’ve been tested.” Sometimes employees are reluctant to provide medical information to their employers because they fear the employer may widely spread their personal medical information in the workplace. And, we don’t have time to get into the nitty gritty of the ADA’s confidentiality requirements. But generally speaking, the ADA prohibits broad disclosures. And so, the EEOC recommends asking an employee about why they don’t want to comply because that may give you an opportunity to reassure your employees that you’ll be appropriately maintaining confidentiality and hopefully that will increase compliance.

Dana Stutzman: Okay, my turn. Another question the EEOC has addressed is, whether an employer can exclude individuals from the workplace if they do not have any symptoms of the disease? Sometimes referred to as asymptomatic. But instead, because the CDC has identified them because of their belonging to a protected class, as being at a higher risk of severe illness, if they contract COVID-19.

Dana Stutzman: Practically speaking, this can come up in three distinct contexts. One of which, has to do with employees age 65 years or older. Second context, would be with respect to employees with underlying health conditions. The third context, is with respect to pregnant employees. Okay? So the answer in short is, that employers cannot discriminate against workers based on their belonging to a protected class.

Dana Stutzman: In other words, no stereotyping. What that means is that you cannot base employment decisions including decisions about layoff and furlough on an employee’s age, disability or pregnancy. So for example, the CDC says the employees a 65 and older are at heightened risk for COVID. Can I, as the employer, proactively try to mitigate that risk and protect those employees for their own good, by singling them out for furlough? Answer, no, I cannot.

Dana Stutzman: Another example, CDC has a list of people who are at higher risk for severe illness, if they contract COVID. That list includes a recommendation to monitor women who are pregnant. Can I then, as the employer, try to get out in front of that potential risk and single out pregnant employees or asymptomatic, meaning they have no symptoms, can I single them out for furlough or for layoff status to protect them? Again, answer, no, I can’t. The Title VII protections guard against pregnancy discrimination and the EEOC has stated that, that would be a form of pregnancy discrimination.

Mary Kate Liffrig: Yeah, that’s right. Now, the flip side of that question is, whether an employee can request an accommodation because they’re at a higher risk of complications, as a result of COVID-19? And, this can also come up in a series of distinct contexts. And so, let’s first talk about employees who have a disability, as defined by the ADA, and who asked for an accommodation because COVID-19 puts them at a higher risk of complications.

Mary Kate Liffrig: Under the ADA, an employer is required to provide reasonable accommodation to an employee or an applicant with a disability, unless doing so would pose an undue hardship. And, the EEOC has indicated that a request for an accommodation because of a current disability, whether that disability is exacerbated by the COVID-19 situation or if that individual is at a higher risk of developing complications from COVID-19, those requests should be viewed as a request for a reasonable accommodation under the ADA.

Mary Kate Liffrig: And, as with any other request for an accommodation under the ADA, the employer can verify the existence of a disability, if it’s not already known and can discuss both why an accommodation is needed and the type of accommodation that would meet the employee’s health concerns. And, we can request documentation to support those pieces of information. So although this is a totally unique situation that we’re all going through with COVID-19, really the way we handle a request for an accommodation under the ADA, does not change.

Mary Kate Liffrig: So again, we’re going to be going through the reasonable accommodation process, that good faith interactive process and then the employer can also consider whether a reasonable accommodation would pose an undue hardship. An employer does not have to provide a particular, excuse me, a particular reasonable accommodation if it poses an undue hardship. Which means, it would pose a significant difficulty or expense to the employer.

Mary Kate Liffrig: And, the EEOC has specifically recognized that in some instances an accommodation that would not have posed an undue hardship prior to the pandemic, may pose one now. And, we don’t have time to get into the weeds here but the EEOC has provided some detailed information about the interactive process during the COVID-19 situation. And also, what constitutes an undue hardship in light of the COVID-19 situation. And, one thing to keep in mind about the ADA is, that it applies to everyone, even your essential workers or your critical infrastructure workers. And so, if you receive a request for a reasonable accommodation under the ADA from your critical workers, from your essential employees, you’ve got to treat those requests just like you would any other employee.

Mary Kate Liffrig: So while your employers do have an obligation to accommodate employees and applicants with disabilities, the ADA doesn’t cover family members disabilities. And, this is one of the other areas where this is questioned about whether or not an employer… I’m sorry, an employee can request an accommodation because they’re at a higher risk, this is the other area that can come up. That’s when an employee is requesting an accommodation because his or her spouse is at a greater risk or a child is at a greater risk of complications if they contract COVID-19. So in that situation, under the ADA the employee is the only one who has a right to a reasonable accommodation for their own disability.

Mary Kate Liffrig: And, in these examples, the employee does not have a disability and so the employee would not be entitled to an accommodation under the ADA in these situations. Now that said, the EEOC cautioned in its webinar that employers should consider if it’s treating the employee differently from other employees, with a similar need, before it responds to this type of a request. And we should also note, that there are other laws that may require a leave to care for a sick family member, such as the FMLA or the Emergency Paid Sick Leave Act or state or local laws. Very much fact specific and not one of the laws that we’re covering today but just a note so we don’t forget that there are other laws that apply in this potential situation.

Dana Stutzman: So to piggyback on Mary Kate’s comments, requests for accommodation from an employee because of their age or their pregnancy, are also typically not covered by the ADA. Those are issues that have frequently been coming up in the workplace during the COVID pandemic. Happily, thankfully, the EEOC hit both of those questions head on during its webinar.

Dana Stutzman: So the question was whether employers are required to grant a request to tele work from an employee who is 60 or older because the CDC says that older people are more likely to experience severe symptoms, if they get COVID-19. So again, as an employer, are you required to grant a tele work accommodation request from an employee, who’s age 60, just because he or she is more likely to experience severe symptoms if they get COVID-19. Answer, no. You’re not required to do so because under the ADEA, Age Discrimination and Employment Act, there’s no accommodation obligation that exists. So by extension, no need to accommodate based on the age component alone.

Dana Stutzman: Caveat, employers need to take note that you should be ensuring that differential treatment is not given to other employees who make a similar request. Well, what do I mean by that? For example, if you have an employee with asthma, who is otherwise asymptomatic, has no symptoms, and they come to you and they ask for accommodation because they are concerned that they are going to be at higher risk by coming into the workplace. If that employee is allowed to tele work, due to potential health concerns, then in that scenario, you as the employer would need to grant the 60 year old or 65 year olds work from home requests. Otherwise, you’re being discriminatory in your employment practices because you’re treating the older worker less favorably, than the otherwise perfectly healthy asthma employee who had a tele work request.

Dana Stutzman: So keep that in mind. Now, let’s switch over to the pregnant employee scenario. This again, is an issue that comes up a fair amount during the pandemic. Question is, whether the employer has to grant a pregnant employee’s request to tele work because the CDC says that there is a higher risk if she contracts COVID-19. Answer again, is no. You don’t have to grant that accommodation. As before however, there’s a caveat. Employers need to treat pregnant workers the same as other workers who are similar in their ability or inability to work. And that may mean, that if you’re providing accommodations for others, similar in their ability or inability to work, you would need to do the same for the pregnant workers.

Dana Stutzman: So go back to my asthma employee example. If you were to grant a tele work request from an asymptomatic, asthma employee, who’s otherwise healthy, then you would want to grant the pregnant employees who request, as well. Also, with respect to pregnant workers, note that if the pregnant worker has an underlying disability, something more than just an otherwise normal straight forward pregnancy. If the pregnant employee has a disability, as defined by the ADA, then that disability should be accommodated, a good faith interactive process should be initiated and accommodations may need to be granted, in that case.

Dana Stutzman: Changing gears ever so slightly, a lot of employers have transitioned to allowing employees to tele work, as much as possible, during the pandemic. Right? States across the country are shelter in place, for the most part, vast majority of the workplace has gone to work from home methodology. It means, everybody or nearly everybody is teleworking right now.

Dana Stutzman: There’s been a handful of questions that have arisen, as they relate to tele work. Again, the EEOC provided helpful guidance in this area, so I’ll address these questions using three examples. Example one, you’re an employer and some or all of your workforce is teleworking. One of your teleworking employees already had an accommodation in place, when he was physically working in the workplace. Question is, whether you need to make that same accommodation in the tele work environment? Answer, follow the tried and true, good faith interactive process. Brainstorm, deliberate, determine if there is a reasonable accommodation that could be provided to the employee, who is working from home. Meaning, the employer and employee should discuss what accommodations are needed and why and whether the same or different combinations will suffice, in the tele work environment.

Dana Stutzman: For example, if the employee has vision issues and needed a large computer monitor, while working in the workplace, the accommodation discussion in the tele work environment would sensor on what kind of monitor does the employee have at home? If the employee has a large monitor at home, is able to view and see the monitor, then in that case, no accommodation would be needed. If the employee, in contrast, doesn’t have a monitor, has a small monitor, only has a laptop with a teeny tiny screen, then in that scenario, yes, the employer and the employee would want to brainstorm, go through the interactive process to make arrangements to get the large monitor to the employee’s home office. So, that’s kind of how the tele work accommodation process would work in that scenario.

Dana Stutzman: So moving on, example two of three. Example two and this is a hot topic or at least as far as hot topics go in an EEOC accommodation, pandemic environment. Assume as an employer, that you went to a tele work environment for your workforce during COVID-19. After the shelter in place, work from home, social distancing stuff is lifted and the tele work is no longer necessary, does the employer automatically have to grant tele work, as a reasonable accommodation, to every employee with a disability who wishes to continue the teleworking arrangement? Here the answer, thankfully, is no.

Dana Stutzman: Straight from the EEOC webinar, an employer does not have to eliminate an essential function of the job just because they did during this public health crisis. Therefore, an employer may determine that teleworking is not a reasonable accommodation after the COVID-19 pandemics subsides. And, when the EEOC makes reference to employers not having to eliminate an the essential function of the job, they are most likely referring to regular, in person attendance on the job. So side note, having that kind of verbiage in your position description would be helpful and it will be helpful in a post COVID environment.

Dana Stutzman: Last example, number three of three. Assume that, prior to COVID, an employee with a disability had requested tele work as a reasonable accommodation. At the time, the employer denied the request because of concerns that the employee would not be able to perform the essential functions remotely. In the past, meaning before COVID, the employee continued to come to the workplace. But, after the COVID-19 crisis has subsided and temporary tele work ends, the employee renews his reasonable accommodation request for tele work. Can the employer refuse the request? Answer, it depends. It’s a maybe.

Dana Stutzman: What the EEOC has said is, that as with all ADA reasonable accommodations, the employer and employee should continue to have an open communication regarding the employee’s needs. EEOC went on to say that, the employer may want to consider this COVID tele work period as a “trial run” for future reasonable accommodations. So, I’m going to read a little bit between the lines. If the employee was able to carry out the essential job functions, while teleworking during COVID, I think the employer would have a really tough time denying the request in a post COVID environment.

Dana Stutzman: Keep in mind however, that in this example, the reason the employer had previously denied to tele work request was because of concerns that the employee wouldn’t be able to perform essential job functions remotely. So there was some question as to whether or not that was able to happen. Certainly, if the job requires in person, regular tenants at the workplace, that would put the employer on firmer footing to deny that tele work request in a post COVID environment.

Mary Kate Liffrig: Great. And then, switching gears again here, it’s also against the federal EEO laws to harass or otherwise discriminate against employees based on race, national origin, color, sex, religion, age, disability or genetic information. I know we’ve already talked a little bit about nondiscrimination but just a reminder, employers need to be aware of and need to reduce and address workplace harassment, that may arise as a result of the COVID-19 pandemic.

Dana Stutzman: So just a few closing remarks from me, COVID-19, the effect on the workplace, effect across the country unlike anything I’ve ever seen before. Significant amount of fear, anxiety in the workplace, especially in the healthcare industry. So as employers are navigating these unchartered waters, look to the guidance that’s issued on a regular basis by the regulatory agencies, including the EEOC, lean on your attorneys and do the best you can because we’re all in some way, shape or form trying to navigate our way through a lot of uncertainty and unknown. So with that, that’s all that I have for purposes of today’s podcast.

Mary Kate Liffrig: Great. Well, Dana, thanks for joining us and listeners, thanks for joining us. As a reminder, for more healthcare employment law content, please visit our website at hallrender.com and please subscribe to our podcast.

Mary Kate Liffrig: Hall Render’s attorneys and professionals continue to maintain the most up to date information and resources, which are available at our COVID-19 resource page and that’s hallrender.com/coronavirus. Or, through our 24/7 COVID-19 hotline and the phone number for that hotline is on our website. Or of course, you can contact your regular Hall Render attorney.

Mary Kate Liffrig: If you’d like to be added to our monthly newsletter, feel free to send me an email at mliffrig@hallrender.com. That’s mliffrig@hallrender.com. And finally, please understand that our podcast is for informational purposes only and for ethical reasons, Hall Render attorneys cannot answer specific questions, that would be legal advice outside of an attorney client relationship.