On May 8, 2020, Virginia Governor Ralph Northam issued an Executive Order implementing Phase One of his plan to ease many of the current COVID-19-related restrictions on businesses and public activities for most jurisdictions in the Commonwealth, effective as of May 15, 2020. But not in Northern Virginia, where the region has yet to achieve the COVID-19 benchmarks that led to Northam’s easing of business and public activity restrictions elsewhere in Virginia.

Northam pushed back implementation of the Phase One plan until at least May 28, 2020 for the Northern Virginia Region (Arlington, Fairfax, Loudoun, and Prince William counties, and the cities of Alexandria, Fairfax, Falls Church, Manassas, and Manassas Park). With the additional time, businesses in the Northern Virginia Region should be giving serious thought to the policies and procedures that each will need to have in place to achieve appropriate workplace safety for employees and customers on May 28, or whenever re-opening day arrives. In addition to the requirements of Northam’s latest orders, most businesses are relying heavily on the recommended workplace safety guidelines that have been issued by the CDC, OSHA, and the EEOC to formulate their COVID-19 back-to-business plans.

A key piece of appropriate back-to work COVID-19 response planning is to prevent and reduce COVID-19 transmission among employees and customers. According to the CDC, that means being able to promptly identify and separate employees in the workplace who appear to have symptoms of the illness upon arrival at work or who become sick during the day. How do you accomplish the CDC’s suggested goal? You can observe your employees at work for COVID-19 symptoms; ask your employees if they are feeling sick; and test your workers and customers for symptoms of the illness.

Easy enough, right? Not really. There is an undeniable tension between the workplace safety benefits of gathering medical information, or requiring COVID-19 testing for your employees, and the restrictions of federal law. The Americans with Disabilities Act (ADA), enforced by the EEOC, protects employees from employer “medical inquiries” or “medical examinations,” unless the employer has an objectively reasonable basis to believe that the employee has a medical condition that impairs the employee’s ability to perform their job, or the employee poses a “direct threat” to himself due to a medical condition, like COVID-19.

The ADA is relevant to employer return-to-work planning in three basic ways, because it:

1. regulates employers’ disability-related inquiries and medical examinations for all employees (including those who do not have ADA disabilities);
2. prohibits employers from excluding employees with disabilities from the workplace for health or safety reasons unless they pose a “direct threat,” i.e., a significant risk of substantial harm even with reasonable accommodation; and
3. requires employers to reasonably accommodate employees with disabilities (absent undue hardship), even during a pandemic.

The EEOC has issued periodic updates to its technical assistance guidance for employers, to address compliance with the ADA during the COVID-19 pandemic. The EEOC’s suggestions for how to navigate the impact of COVID-19 and the ADA protections for workers have made clear that there are certain things an employer can ask its employees, or do, including:

• Ask employees if they are experiencing symptoms of COVID-19, which include fever, chills, cough, shortness of breath, sore throat, and gastrointestinal distress, according to the CDC.
• Require all employees to submit to body temperature testing as a condition of returning to work, since elevated body temperature is a symptom of COVID-19 (Note that whether other forms of employee medical testing are permissible under the ADA will depend on factors such as the invasiveness of the test and its accuracy).
• Require employees who become ill with symptoms of COVID-19 to immediately leave work and stay home until they have been cleared to return to work, in accordance with the CDC’s guidelines.
• Require a doctor’s note certifying an employee’s fitness for duty as a condition of the employee returning to work after exhibiting COVID-19 symptoms.
• Require all workers to wear personal protective equipment (PPE), such as masks, gloves, and face shields, as a means of controlling potential spread of COVID-19.
• Require returning workers to observe COVID-19 infection control practices, such as social distancing and regular hand washing.

The EEOC’s May 7, 2020 update addressed a more nuanced scenario many employers could face as businesses begin to reopen: What does the ADA permit an employer to ask or do when an employee has a known medical condition that places the employee at higher risk of severe illness if they get COVID-19? How should an employer address the concern that the employee’s health may be at risk upon returning to the workplace?

The CDC has identified a number of COVID-19 complicating medical conditions and risk factors, including:

• age (65 or older)
• asthma
• diabetes
• chronic lung disease
• serious heart conditions
• severe obesity

The ADA does not allow employers to exclude an employee from work solely because the employee has one of the disabilities or risk factors, according to the EEOC, unless the employee’s disability or risk factor would pose a “direct threat,” defined as a significant risk of substantial harm to the employee’s health or safety. To make that determination, the ADA requires the employer to undertake an individualized risk assessment of the employee, using “direct threat” factors identified by the EEOC, including the:

• duration of the risk,
• nature and severity of the potential harm (including the employee’s overall health, and whether the disability is well-controlled),
• likelihood that the potential harm will occur (including the severity of the pandemic in the surrounding area, workplace risk of exposure and workplace mitigating measures), and
• immediacy of the potential harm.

The employer’s individualized assessment does not end the return-to-work inquiry. Even if the employer concludes from its assessment that the employee poses a direct threat to his own health, the ADA also requires the employer to engage with the employee to determine whether there are reasonable accommodations, absent undue hardship to the employer, that would eliminate or reduce the risk to the point where it would be safe for the employee to return to work and perform all essential job functions.

Reasonable accommodations responsive to the COVID-19 pandemic may include additional or enhanced PPE beyond what the employer generally provides to non-disabled employees returning to the workplace, altering the physical layout of the workspace to create more open space, erecting protective sneeze barriers, or modified or alternative work schedules.

Accommodations that pose an “undue hardship” to the employer are not deemed to be reasonable. “Undue hardship” means that the accommodation would result in “significant difficulty” or “significant expense” to the employer. The COVID-19 pandemic may create a number of difficulties, including making it substantially harder for the employer to conduct an accommodation needs assessment, to acquire or obtain delivery of items needed for an accommodation, or to provide the employee with alternative work assignments. In addition, because the COVID-19 pandemic has adversely affected the budgets and overall resources of many businesses, some otherwise reasonable and attainable pre-COVID-19 accommodations may have become a “significant expense” and thus unreasonable.

Virginia’s anticipated reopening of many businesses and return of employees to the workplace is not without its risks, as reflected in the EEOC’s latest guidance. In those situations where an employer is aware of a health condition that may elevate an employee’s risk of contracting a serious COVID-19-related illness, the ADA requires employers to engage in the individualized risk assessment and accommodation processes set forth above, before barring the employee from returning to work. While the COVID-19 pandemic may cause employers to conclude that some accommodations are just too difficult or expensive to provide, the undue burden bar is set high. Extra care should be taken in making that decision.

We will be providing future updates regarding the EEOC’s COVID-19 ADA guidance for employers as they are announced. Refer to the Bean, Kinney & Korman COVID-19 Resource Center for additional employment information plus other resources for businesses and individuals. If you have questions or need assistance, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors, and are not necessarily the views of any client.