The U.S. Equal Employment Opportunity Commission (“EEOC”) has issued an update to its technical guidance: “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The technical guidance incorporates the EEOC’s prior guidance on the ADA and other anti-discrimination laws into one question and answer document. In addition, the updated guidance clarifies the following:
• COVID-19 and Employee Testing (Question A.6): The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Employers have the right to determine if employees entering the workplace have COVID-19 because an individual with the virus poses a direct threat to the health of others. An employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance meets ADA’s “business necessity” standard.

• Requests for Accommodations (Questions D.6 & G.6): Employers may inform their employees that they may request accommodations they believe they may need when they return to the workplace, in advance of returning to work. If advance requests are received, employers may begin the “interactive process,” which is the discussion between the employer and employee regarding whether the impairment is a disability and the reasons for the accommodation. If an employee chooses not to request an accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

The full EEOC Technical Assistance Questions and Answers can be found here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
The Attorneys at Levene Gouldin & Thompson, LLP are available to provide advice and counsel concerning matters related to COVID-19.