response and insight

COVID-19: Coronavirus

Providing quick, up-to-date insight and resources regarding the affects of the Coronavirus on our community and beyond

First and foremost, as we all navigate the ongoing pandemic, we at GRB Law want to ensure you that even in this uncertain time, we are dedicated to providing you with the high quality legal services that you have come to expect from GRB Law. 

Our COVID-19 resource center is intended to provide you with quick, up-to-date insight regarding the coronavirus and directives regarding this time. If you need specific guidance, please find your lawyer here.

Click through the accordion below for detailed information.
 

UPDATE: In response to The Families First Coronavirus Response Act, a new DOL poster is required to be posted and/or shared with employees by April 1st. Find the poster here.

The Families First Coronavirus Response Act puts into place a number of emergency provisions that will impact employees and employers, including changes to FMLA and creation of federally mandated paid sick time. Below please find summaries of these new laws which will be in effect from not later than April 1, 2020, through December 31, 2020. Please call if you have an employee requesting leave, or if we can provide any further guidance.

Emergency Paid Leave Sick Act

Two weeks of paid leave is available if an employee is unable to work or telework for the following reasons:

(1)The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.

(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Two weeks is calculated as follows:

Full-time employees: 40 hours

Part-time employees: the average hours an employee works over a 2 week period. When a part-time employee has a schedule that varies from week to week, the employer is to look back over the last 6 months to determine the average for that employee.

Pay shall be employee’s actual rate unless the employee is taking leave to take care of a family member under (4)(5)(6) above.  

Employee taking leave to care for a family member pursuant to (4)(5)(6) above shall be paid at least 2/3 of the employee’s actual rate.
 
This paid leave is available to any employees, no matter how long he/she have worked for the employer.
 
An employer cannot require an employee to use other paid leave before taking leave under this act.
 
Health care providers and emergency responders may be excluded by the employer.
 
Employer tax credits are available for the mandated paid leave:

For employees taking leave for self-quarantine or seeking symptoms the credit will be up to $511 per day and $5,110 in the aggregate, for up to 10 days.

For employees taking leave to care for a family member the credit will be up to $200 per day, and $2,000 in the aggregate, for up to 10 days.

There is an additional credit for the cost to maintain health insurance coverage for the eligible employee during the leave period.

Important changes regarding FMLA with the Emergency Family and Medical Leave Expansion Act:

Allows for paid and unpaid leave for child care during a public health emergency, as declared by the Federal, State or Local Government, with respect to COVID-19. We are in such a public health emergency so this provision applies to employees and employers in Pennsylvania.

Leave is allowed for the care of a child when an employee cannot work or telework because the employee needs to care for a child who would otherwise be in school or daycare, but such care is not available due to the public health emergency.

This public health emergency leave is not available for other reasons, including care for other family members or quarantine.

Changes the definition of eligible employee so that an employee is eligible for leave due to the public health emergency after being employed for at least 30 calendar days. Please note the standard length of employment to qualify for FMLA is 12 months.

Changes the definition of eligible employer to employer with fewer than 500 employees. This is a significant change as It was previously an employer with 50 or more employees.

Changes requirements for paying employees on leave.

Employer can provide the first 10 days of leave as unpaid, unless the employee qualifies for sick leave as outlined above well. In that instance, all leave, from the first day of leave, is to be paid. The employee can elect to use previously accrued paid leave during that time of upaid leave, but cannot be forced to do so.

After the first 10 days where an employee does not also qualitfy for paid sick leave, the employer is to provide paid leave.

Pay should be “not less than two-thirds of an employee’s regular rate of pay” for the hours an employee would normally be schedule to work.

If an employee had varying hours then there should be a calculation of the average hours worked over 6 months.
 
There are exceptions for restoring employees to the position held when leave commenced for employers with fewer than 25 employees.

Employer tax credits for mandated paid leave:

Credit is available for up to two-thirds of employee’s regular pay, capped at $200 per day or $10,000 in the aggregate.

Up to 10 weeks of qualifying leave can be counted towards the credit.


NEW DOL poster required to be posted by APRIL 1, 2020. Download it here. 
1. Where do I post this notice? Since most of my workforce is teleworking, where do I electronically “post” this notice? 
Each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.

2. Do I have to post this notice in other languages that my employees speak? Where can I get the notice in other languages? 
You are not required to post this notice in multiple languages, but the Department of Labor (Department) is working to translate it into other languages.

3. Do I have to share this notice with recently laid-off individuals? 
No, the FFCRA requirements explained on this notice apply only to current employees.

4. Do I have to share this notice with new job applicants? 
No, the FFRCA requirements apply only to current employees. Employers are under no obligation to provide the notice of those requirements to prospective employees.

5. Do I have to give notice of the FFCRA requirements to new hires? 
Yes, if you hire a job applicant, you must convey this notice to them, either by email, direct mail, or by posting this notice on the premises or on an employee information internal or external website.

6. If my state provides greater protections than the FFCRA, do I still have to post this notice? 
Yes, all covered employers must post this notice regardless of whether their state requires greater protections. The employer must comply with both federal and state law.

7. I am a small business owner. Do I have to post this notice? 
Yes. All employers covered by the paid sick leave and expanded family and medical leave provisions of the FFCRA (i.e., certain public sector employers and private sector employers with fewer than 500 employees) are required to post this notice.

8. How do I know if I have the most up-to-date notice? Will there be updates to this notice in the future? 
The most recent version of this notice was issued on March 25, 2020. Check the Wage and Hour Division’s website or sign up for Key News Alerts to ensure that you remain current with all notice requirements: www.dol.gov/agencies/whd.

9. Our employees must report to our main office headquarters each morning and then go off to work at our different worksite locations. Do we have to post this notice at all of our different worksite locations? 
The notice needs to be displayed in a conspicuous place where employees can see it. If they are able to see it at the main office, it is not necessary to display the notice at your different worksite locations.

10. Do I have to pay for notices?
No. To obtain notices free of charge, contact the Department’s Wage and Hour Division at 1-866-4-USWAGE (1-866-487-9243). Alternatively, you may download and print the notice yourself from https://www.dol.gov/agencies/whd/posters
 
11. I am running out of wall space. Can I put the required notices in a binder that I put on the wall? 
No, you cannot put federal notices in a binder. Generally, employers must display federal notices in a conspicuous place where they are easily visible to all employees—the intended audience.

12. We have break rooms on each floor in our building. Do I have to post notices in each break room on each floor or can I just post them in the lunchroom? 
If all of your employees regularly visit the lunchroom, then you can post all required notices there. If not, then you can post the notices in the break rooms on each floor or in another location where they can easily be seen by employees on each floor.

13. Our company has many buildings. Our employees report directly to the building where they work, and there is no requirement that they first report to our main office or headquarters prior to commencing work. Do I have to post this notice in each of our buildings?
Yes. Where an employer has employees reporting directly to work in several different buildings, the employer must post all required federal notices in each building, even if the buildings are located in the same general vicinity (e.g., in an industrial park or on a campus).
 
14. By when do I have to post the notice?
April 1, 2020. Download it here. 
This summary is provided by GRB Law for education and informational purposes only and is not intended and should not be considered as legal advice.

The CARES Act Paycheck Protection Program (“PPP”) provides small business loans to eligible businesses to cover payroll, health care costs, mortgage interest payments, rent and utility payments, and interest on pre-existing debt obligations.  Up to 100% of the PPP loans is eligible for forgiveness, as long as the loan proceeds were used toward qualified payments.

Many small businesses received PPP loans and now have questions about how to apply for loan forgiveness.  In addition, other small businesses have not yet received a PPP loan but may still need to do so as the COVID-19 pandemic continues. 

This article summarizes some important recent updates to the PPP.   

On June 5, 2020, President Trump signed into law the Paycheck Protection Program Flexibility Act (“PPPFA”), a bill designed to make loan forgiveness more achievable for borrowers utilizing the PPP.  

As initially implemented, a recipient of a PPP loan could only have its loan forgiven if the borrower spent the loan proceeds within eight (8) weeks, used 75% of the loan proceeds on payroll expenses, and replaced its full-time-equivalent employees by June 30, 2020.  The PPPFA relaxes these requirements and instead allows a borrower to have its PPP loan forgiven so long as the borrower spends the loan proceeds within 24 weeks, uses 60% of the loan proceeds on payroll expenses, and replaces its full-time-equivalent employees by December 31, 2020.   

The PPPFA also relaxes repayment terms for PPP loan recipients who cannot meet the loan forgiveness criteria by extending the maturity date for PPP loans from two (2) years to five (5) years.

Although the PPP, as amended by the PPPFA, was initially set to expire on June 30, 2020, the application deadline has been extended until August 8th.  To date, of the $660 billion in funding allocated to the PPP, roughly $130 billion remains in the program. This means that small business owners, sole proprietors, and independent contractors who have not previously applied for a PPP loan can do so at better terms than originally provided for under the CARES Act.  

For more information or you have any questions regarding these updates to the PPP, feel free to contact GRB Law attorneys  Brian T. LindauerJeffrey R. Hunt or Mandi L. Culhane
PERSONAL INCOME RETURNS

The Department of Revenue announced the deadline for taxpayers to file their 2019 Pennsylvania personal income tax returns is extended to July 15, 2020. This means taxpayers will have an additional 90 days to file from the original deadline of April 15. The Internal Revenue Service also extended the federal filing deadline to July 15, 2020.

The Department of Revenue will also waive penalties and interest on 2019 personal income tax payments through the new deadline of July 15, 2020. This extension applies to both final 2019 tax returns and payments, and estimated payments for the first and second quarters of 2020.

Locally, all four (4) Allegheny County Tax Collection Districts (Central, North, Southeast & Southwest) has also extended the individual filing deadlines for Local Earned Income Taxes to July 15, 2020. This extended deadline applies to both the 2019 Earned Income Tax Final Returns and 1st Quarter 2020 estimates. Penalty and Interest on Tax Year 2019 Final Return payments of 1st Quarter estimates will not be applied until after July 15, 2020. For more information, contact any of the attorneys in the firm's Municipal Creditors' Rights Group.


GIFT TAX RETURN EXTENSION

On March 27, 2020, the IRS issued Notice 2020-20, which extended the April 15, 2020 filing and payment deadline for any person with a federal gift tax or generation skipping transfer tax payment due or the requirement to file your gift tax return (IRS Form 709) on April 15, 2020.  As a result, gift taxes and generation skipping transfer taxes now have the same extended deadline as for filing and paying personal income taxes.

Pursuant to Notice 2020-20, the extension is automatic and no filing is required to obtain the benefit of the extension to July 15, 2020.  If you do file for an extension to file your gift tax return by July 15, 2020, then you will obtain an extension until October 15, 2020 to file it; however, there will be no further extension given to pay any tax due. 

Additionally, pursuant to IRS Notice 2020-20, the IRS will disregard any interest and penalties so long as you pay any taxes due on or before July 15, 20202 and timely file your return.  Otherwise, interest and penalties will begin to accrue on July 16, 2020.

If you have any questions, contact Jeffrey R. Hunt.
The Pennsylvania General Assembly and Governor Tom Wolfe have enacted numerous COVID-19 related laws since March 2020.  Some of those coronavirus response measures are summarized below:

Act 9 of 2020 – Provides for emergency changes to the state’s Unemployment Compensation law in response to COVID-19.  Act 9 eases eligibility requirements and access to unemployment compensation for workers who have been directly impacted by the coronavirus, including waiving the one-week waiting period for all claimants during the governor’s disaster declaration. Job search and registration requirements for claimants would also be waived under the bill.  The Act also provides automatic relief from benefit charges for any employer whose account would otherwise be charged for weeks of unemployment occurring during the duration of a disaster emergency.

Act 10 of 2020 – Updating the Enhanced Revenue Collection Account.  Act 10 provides up to $50 million of additional funding to healthcare facilities for the sole purpose of buying medical equipment and supplies to address the increased demands that COVID-19 could place on the entire healthcare system. The new money will help ensure healthcare facilities can better meet the needs of patients and staff.

Additionally, Act 10 extends the deadline for individuals who are required to declare and pay estimated Personal Income Tax as well as delays the filing of informational returns for Pennsylvania S corporations and partnerships, estates and trusts.  The legislation also authorizes the Department of Community and Economic Development to coordinate with local political subdivisions to extend filing and payment deadlines for the local Earned Income Tax.  These deadlines have been extended to July 15, 2020.

Act 10 also extends temporary regulations related to Pennsylvania’s medical cannabis industry until November 2021.

Act 13 of 2020 – Educator Evaluation Reform.  Act 13 updates Pennsylvania’s School Code to waive a number of mandates on schools that cannot be fulfilled under the current circumstances, including the requirement that all public schools must be open at least 180 days per school year. The bill gives the Secretary of Education the authority to waive similar restrictions for career and technical schools and pre-kindergarten instruction.  It also guarantees that teachers will receive the same compensation they would have received if the pandemic had not occurred.

Act 15 0f 2020 – Important updates regarding property taxes; remote municipal meetings; and remote notary services.  Act 15, among other things, authorizes municipalities to provide property tax relief to their residents, extends the deadline for businesses to claim an educational tax credit, allows schools to renegotiate their contracts with contractors, allows notarial acts to be performed electronically, and authorizes political subdivisions to hold meetings electronically.
1. How can I determine whether my business is considered a life-sustaining business and is allowed to continue in-person operations?

Businesses should first refer to the Governor’s Order and the list of life-sustaining businesses which is available here. The categories in the list were drawn from the classifications of the North American Industry Classification System (NAICS).

Your industry sector (drawn from the NAICS classifications) appears on the life-sustaining business list. You may have used your business’ NAICS code to buy insurance, manage employee benefits, pay taxes or interact with other governmental entities. If you do not know your NAICS classification, you should review documents relating to those activities for help identifying what classification you fall within. More information about NAICS classifications can be found here.

If your business’ NAICS classification falls within a category that is listed as “life-sustaining” on the list of life-sustaining businesses you are not required to seek a waiver and may remain open provided that you adhere to social distancing restrictions and taking other mitigation measures to ensure the health and safety of employees and patrons.

If your business’ NAICS classification does not fall within a category listed as “life-sustaining” you may qualify for a waiver if your business provides goods or services necessary to maintain operations of a business on the life-sustaining list.

In making waiver determinations, the Department of Community and Economic Development (DCED) is maintaining consistency with an advisory issued by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA Advisory”) entitled “Identifying Critical Infrastructure During COVID-19".

The CISA Advisory broadly authorizes in-person activity by businesses and workers necessary for production, operation and maintenance of supply chains of the following critical infrastructure categories:
- materials and products needed for medical supply chains,
- essential transportation,
- energy,
- essential communications,
- food and agriculture,
- chemical manufacturing
- nuclear facilities,
- the operation of dams, water and wastewater treatment,
- emergency services, and
- the defense industrial base.

Please note that waivers for these activities will only be granted to the extent that they are providing a good or service directly to a critical infrastructure category, as opposed to non-critical operations that may broadly fit within these categories.

2. Who may want a waiver?
Any business that does not fall within a category listed as “life-sustaining” on the list of life-sustaining businesses, but which provides goods or services necessary to maintain operations at a business on the life-sustaining list or in one of the critical infrastructure categories outlined in the CISA Advisory should request a waiver.

3. Are businesses allowed to continue in-person operations while requesting a waiver?
Businesses that have requested a waiver should comply with the Governor’s Order and suspend in-person operations until a waiver is approved and provided.

4. How does a business request a waiver?
The easiest and quickest way to submit a waiver is to request a waiver via the online portal available at the Department of Community and Economic Development website.

5. What should be included in the waiver request?
Waiver requests submitted pursuant to the CISA Advisory should demonstrate that the manufacturing, construction and services businesses activity is part of the supply chain as detailed in the Life-Sustaining Business List and critical infrastructure categories contained in the CISA Advisory.

Businesses seeking a waiver as part of the supply chain or as necessary to support life-sustaining business should include a detailed narrative of their role in the supply chain of goods or services, including the category of critical infrastructure or life-sustaining business to which they provide goods or services, the extent of their activity which this category comprises, and specific examples of critical or life sustaining infrastructure businesses or sectors with which the applicant business has contracts, etc. The waiver request form is available here and contains further detail on the information to be submitted in the waiver request.

6. How long will it take to get a decision on a submitted waiver?
DCED has received a high volume of waiver requests and is processing waivers as rapidly as possible.

7. My business is in a category allowed to maintain in-person operations, or I was granted a waiver, what should I do to keep employees safe?
All businesses which are maintaining in-person operations must follow social distancing and COVID-19 mitigation guidance provided by the PA Department of Health and CDC and ensure that there are no gatherings larger than 10 people as recommended by the CDC.

8. If a business is classified as non-life-sustaining, but has the ability to operate remotely, must the business close down?
Non-life-sustaining businesses may continue to operate remotely virtually or by telework (i.e. working from home) conducted individually, and in doing so must follow the social distancing and other COVID-19 mitigation guidance provided by the Pennsylvania Department of Health and CDC.

9. Local political units were absent from the list. Should municipalities suspend in-person operations?
Local political units are not required to suspend in-person operations but should curtail in-person operations to the extent practicable and follow COVID-19 mitigation guidance provided by the Pennsylvania Department of Health and the CDC. All decisions should appropriately balance public safety while ensuring the continued delivery of critical infrastructure services and functions.



COMMON ENFORCEMENT QUESTIONS:

10. If a business has been granted a waiver, how can the business demonstrate that fact to an enforcement agency?
Businesses approved for a waiver will receive written confirmation, which they may share with an enforcement agency to confirm authorization to maintain operations.

11. How will this order be enforced? Will there be warnings before fines or other enforcement actions?
The closure of non-life sustaining businesses is a measure that has been taken to control the spread of a communicable disease, COVID-19, and has been ordered by the Governor and the Secretary of Health. The closures are enforceable through criminal penalties, under the Disease Control and Prevention Law of 1955 and the Administrative Code of 1929.

While other criminal penalties in those laws, as well as under the Crimes Code and the Liquor Code, may apply, the following are the most directly applicable provisions for enforcement of the Orders: 71 P. S. § 1409 and 35 P.S. § 521.20(a). We strive to ensure enforcement of the orders will be consistent throughout the Commonwealth. We also expect that any discipline for violation of the orders will be progressive discipline that begins with a warning to any suspected violator. Furthermore, enforcement should be prioritized to focus on businesses where people congregate.

12. How should municipalities and local governments exercise their enforcement authority in supporting the Governor’s order?
State and local officials should use best judgment in exercising their authorities and issuing implementation directives and guidance. Similarly, critical infrastructure industry partners must use best judgment, informed by the list and CISA Advisory to ensure continued operations of critical infrastructure services and functions. All such decisions should appropriately balance public health and safety while ensuring the continued delivery of critical infrastructure services and functions.



COMMON QUESTIONS ABOUT GENERAL BUSINESS CATEGORIES

13. May non-life sustaining business which are required to suspend in-person operations retain essential personnel to process payroll and insurance claims, maintain security, and engage in similar limited measures on an occasional basis?
Yes, but telework (i.e. working from home) should be employed whenever possible, and social distancing must be observed.

14. I requested a waiver, and specifically referenced the portion of my business that supports the health care industry. Does my waiver apply to all my activities?
No. If you received a waiver in response to a request in which you specifically identified a particular element of your business as essential to health care or another life-sustaining operation, that waiver only relates to those activities that you specifically identified.

15. May businesses continue fulfilling mail orders/online orders?
In-person public facing locations must be suspend in-person operations. Mail order and online fulfilment may continue with essential staff but telework should be employed whenever possible, and social distancing must be observed.

16. I am a contractor engaging in emergency repairs who received a waiver or was told that I do not require a waiver. May I perform non-essential work?
Your waiver, or general authority to conduct emergency repairs, is limited to performing those tasks necessary to provide repair services to customers. No new construction or elective rehabilitation or remodeling may be performed.

17. I have a “one person” operation that operates out of my home, with no customer access or physical facility. Must I seek a waiver?
No. You may continue to work as you have no physical location. In-home businesses should suspend any in-person elements in which customers must come to the home business.

18. If a manufacturing business is in a classification that is not to maintain in-person operations, but is in the process of converting to a manufacturing process that is authorized to maintain in-person operations in order to address COVID-19, what should they do?

Businesses not clearly in a category authorized to maintain in-person operations according to the list and CISA Advisory should request a waiver. In this particular circumstance, please note in the waiver request that the facility is transferring operations to a life-sustaining function and the Department of Community and Economic Development will communicate with you about next steps. Please note that you may be denied a waiver until DCED can confirm your desire and ability to transfer to a life-sustaining function.



COMMON QUESTIONS ABOUT SPECIFIC BUSINESS CATEGORIES

19. May I complete my customer’s residential construction project?1
Residential construction projects that are substantially complete may continue to completion. For all other residential construction projects limited activities may continue to the extent necessary to stabilize the site, temporarily prevent weather damage, or make emergency repairs only Projects that are “substantially completed” are those projects that have been issued a final occupancy permit. No new residential construction projects may be started.

20. May businesses which are required to suspend in-person operations maintain limited in-person essential personnel for security, maintaining good repair, processing of essential functions, or to maintain compliance with federal, state or local regulatory requirements?

Businesses suspending in-person operations must limit on-site personnel to maintain critical functions, and in all cases follow social distancing and COVID-19 mitigation guidance provided by the PA Department of Health and CDC. Such building services do not require a waiver.

21. May childcare facilities maintain in-person operations?
The following categories of childcare facilities may maintain in-person operations limited to serving employees of life-sustaining businesses that remain open:
- Child care facilities operating under the Department of Human Services, Office of Child Development and Early Learning waiver process;
- Group and family child care operating in a residence;
- Part-day school age programs operating under an exemption from the March 19, 2020 business closure Orders.

22. May hotels and motels maintain in-person operations?
Hotels and motels are not required to suspend in-person operations. Hotels may not operate any dine-in food services; all food services must be a takeout or delivery only option.

23. May restaurants, bars, breweries, distillers and wineries continue to provide to-go sales of alcohol?
All restaurants, bars, breweries, distillers and wineries should continue to adhere to PLCB guidance. Currently to-go sales are authorized but licensees may not allow the service or consumption of food or alcohol on the licensed premises. PLCB licensees should check the PLCB website for further updates.

24. May notary and title services maintain in-person operations?
Notary and title offices may maintain in-person operations only as required to allow notaries and title service providers to participate in court functions deemed essential by a president judge per the Pennsylvania Supreme Court's order of March 18, 2020, or similar federal court directive, and notaries and title service providers may access their offices to effectuate such functions and directives; or for healthcare-related matters.

25. May law offices maintain in-person operations?
Law offices may maintain in-person operations only as required to allow attorneys to participate in court functions deemed essential by a president judge per the Pennsylvania Supreme Court's order of March 18, 2020, or similar federal court directive, and lawyers may access their offices to effectuate such functions and directives.

26. May bail bondsmen maintain in-person operations?
Bail bond offices may maintain in-person operations only as required to allow bail bondsman to participate in court functions deemed essential by a president judge per the Pennsylvania Supreme Court's order of March 18, 2020, or similar federal court directive, and bail bondsmen may access their offices to effectuate such functions and directives.

27. May pet stores offer in-person ancillary services, such as grooming or training?
No, pet stores may remain open solely to sell pet supplies or provide veterinary services. Pet stores with kennels and pet boarding operations may maintain in-person operations related to these services.

28. May appliance stores maintain in-person operations?
Appliance stores may not maintain in-person sales operations either at their physical locations or off-site, but in-home emergency repairs may continue.

29. I operate a golf course, what in-person operations may continue?
Golf courses and similar outdoor businesses are permitted to have the course mowed and conduct other essential maintenance and upkeep but golfers are not permitted on site.

30. May sporting goods, hunting, fishing and tackle stores maintain in-person operations?
Sporting goods stores, hunting fishing and tackle stores may not maintain in-person operations, but may maintain self-service operations.

31. May bicycle sale and repair shops maintain in-person operations?
Bike shops may not maintain in-person sales but repair work may continue.

32. May firearm dealers maintain in-person operations?
Firearms dealers may operate physical businesses on a limited basis to complete only the portions of a sale/transfer that must be conducted in-person under the law, subject to the following restrictions: 1) all such sale/transfers will be conducted by individual appointment during limited hours only so as to minimize social interactions and congregating of persons; 2) the dealer will comply with social distancing, sanitization of applicable area between appointments, and other mitigation measures to protect its employees and the public.

33. May cell phone sale and repair stores maintain in-person operations?
Cell phone repair stores may continue to repair cell phones and similar household goods. Electronic appliance store and sales kiosks must suspend in-person operations per the Governor’s and Secretary’s orders.

1 Amended 3/26/2020
Updated on June 17, 2020: All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.
   
The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include the requirement for reasonable accommodation and non-discrimination based on disability, and rules about employer medical examinations and inquiries), Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy), the Age Discrimination in Employment Act (which prohibits discrimination based on age, 40 or older), and the Genetic Information Nondiscrimination Act. Note: Other federal laws, as well as state or local laws, may provide employees with additional protections.
   
Title I of the ADA applies to private employers with 15 or more employees. It also applies to state and local government employers, employment agencies, and labor unions. All nondiscrimination standards under Title I of the ADA also apply to federal agencies under Section 501 of the Rehabilitation Act.
   
The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
   
The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version]), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic. It has been updated as of March 19, 2020 to address examples and information regarding COVID-19; the new 2020 information appears in bold and is marked with an asterisk.
   
The World Health Organization (WHO) has declared COVID-19 to be an international pandemic. The EEOC pandemic publication includes a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the following may be useful:

A. Disability-Related Inquiries and Medical Exams

A.1. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic? (3/17/20)

During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. Additional info here.

A.2. When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19? (4/9/20)

As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

A.3. When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic? (3/17/20)

Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever. More information here.

A.4. Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? (3/17/20)

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice. More information here.

A.5. When employees return to work, does the ADA allow employers to require a doctor's note certifying fitness for duty? (3/17/20)

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus. More information here.

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? (4/23/20)

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

A.7.  CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.  Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).  The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

B. Confidentiality of Medical Information

B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee's temperature or the employee's self-identification as having this disease, or must the employer create a new medical file system solely for this information? (4/9/20)

The ADA requires that all medical information about a particular employee be stored separately from the employee's personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee's statement that he has the disease or suspects he has the disease, or the employer's notes or other documentation from questioning an employee about symptoms.

B.2. If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results? (4/9/20)

Yes. The employer needs to maintain the confidentiality of this information.

B.3. May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19? (4/9/20)

Yes.

B.4. May a temporary staffing agency or a contractor that places an employee in an employer's workplace notify the employer if it learns the employee has COVID-19? (4/9/20)

Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.

C. Hiring and Onboarding
 
C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? (3/18/20)

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability. More information here.

C.2. May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam? (3/18/20)

Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever. More information here.

C.3. May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? (3/18/20)

Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. More information here.

C.4. May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it? (3/18/20)

Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer. More information here.

C.5. May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19? (4/9/20)

No. The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.

D. Reasonable Accommodation
 
In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN's materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

D.1. If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities, absent undue hardship, that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19? (4/9/20)

There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee's needs on a temporary basis without causing undue hardship on the employer.

Low-cost solutions achieved with materials already on hand or easily obtained may be effective. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.

D.2. If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? (4/9/20)

Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.

As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.

D.3. In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (4/9/20)

Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.

D.4. What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation? (4/9/20)

An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what he uses in the workplace. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.

D.5. During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may an employer still request information to determine if the condition is a disability? (4/17/20)

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a "disability" as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment).

D.6. During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed? (4/17/20)

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee's disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the "essential functions" of his position (that is, the fundamental job duties).

D.7. If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)

Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the "interactive process" (discussed in D.5 and D.6., above) and grant the request. In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change. This may result in more requests for short-term accommodations. Employers may wish to adapt the interactive process - and devise end dates for the accommodation - to suit changing circumstances based on public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts her at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.

D.8. May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace? (4/17/20)

Yes. Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens. Employers may begin the "interactive process" - the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.

D.9. Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship? (4/17/20)

Yes. An employer does not have to provide a particular reasonable accommodation if it poses an "undue hardship," which means "significant difficulty or expense." As described in the two questions that follow, in some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

D.10. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses "significant difficulty" during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create "significant difficulty" in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

D.11. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses "significant expense" during the COVID-19 pandemic? (4/17/20)

Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer's overall budget and resources (always considering the budget/resources of the entire entity and not just its components). But, the sudden loss of some or all of an employer's income stream because of this pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time - when considering other expenses - and whether there is an expected date that current restrictions on an employer's operations will be lifted (or new restrictions will be added or substituted). These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.

D.12. Do the ADA and the Rehabilitation Act apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC? (4/23/20)

Yes. These CDC designations, or any other designations of certain employees, do not eliminate coverage under the ADA or the Rehabilitation Act, or any other equal employment opportunity law. Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee. Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship.

D.13.  Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition? (6/11/20)

No.  Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment.  The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. 

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure. 

Of course, an employer is free to provide such flexibilities if it chooses to do so.  An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.
 
E. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics
 
E.1. What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic? (4/9/20)

Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.

Practical anti-harassment tools provided by the EEOC for small businesses can be found here:
- Anti-harassment policy tips for small businesses
- Select Task Force on the Study of Harassment in the Workplace (includes detailed recommendations and tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated):
        - report;
        - checklists for employers who want to reduce and address harassment in the workplace; and,
        - chart of risk factors that lead to harassment and appropriate responses.

E.2. Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace? (4/17/20)

Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

E.3.  How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian? (6/11/20)

Managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about the coronavirus or its origins.

All employers covered by Title VII should ensure that management understands in advance how to recognize such harassment.  Harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and also in person between employees at the worksite.  Harassment of employees at the worksite may also originate with contractors, customers or clients, or, for example, with patients or their family members at health care facilities, assisted living facilities, and nursing homes.  Managers should know their legal obligations and be instructed to quickly identify and resolve potential problems, before they rise to the level of unlawful discrimination.

Employers may choose to send a reminder to the entire workforce noting Title VII’s prohibitions on harassment, reminding employees that harassment will not be tolerated, and inviting anyone who experiences or witnesses workplace harassment to report it to management.  Employers may remind employees that harassment can result in disciplinary action up to and including termination.

E.4.  An employer learns that an employee who is teleworking due to the pandemic is sending harassing emails to another worker.  What actions should the employer take? (6/11/20)

The employer should take the same actions it would take if the employee was in the workplace.  Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration. 

F. Furloughs and Layoffs
 
F.1. Under the EEOC's laws, what waiver responsibilities apply when an employer is conducting layoffs? (4/9/20)

Special rules apply when an employer is offering employees severance packages in exchange for a general release of all discrimination claims against the employer. More information is available in EEOC's technical assistance document on severance agreements.

G. Return to Work
 
G.1. As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace? (4/17/20)

The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.

For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return by certain types of critical workers.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

G.2. An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests? (4/17/20)

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII.

G.3. What does an employee need to do in order to request reasonable accommodation from her employer because she has one of the medical conditions that CDC says may put her at higher risk for severe illness from COVID-19? (5/5/20)

An employee – or a third party, such as an employee’s doctor – must let the employer know that she needs a change for a reason related to a medical condition (here, the underlying condition).  Individuals may request accommodation in conversation or in writing.  While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, she may do so. 

The employee or her representative should communicate that she has a medical condition that necessitates a change to meet a medical need.  After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided. 

G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19.  An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation.  How does the ADA apply to this situation? (5/7/20)

First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.  Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard.  As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r) (regulation addressing direct threat to health or safety of self or others). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.  Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties.  A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite.  Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship).  The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions.  This can involve an interactive process with the employee.  If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).  An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation. 

G.5. What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self? (5/5/20)

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.  Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.  Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).  In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).  

These are only a few ideas.  Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace.  An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations.  As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.

G.6.  As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements? (6/11/20)

Yes.  The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact – if they wish – to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return.  If requests are received in advance, the employer may begin the interactive process. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions. 

An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.

Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC guidance that emphasizes the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.

Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.

G.7.  What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition? (6/11/20)

This is a request for reasonable accommodation, and an employer should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act.  If the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process. Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability and what specific limitations require an accommodation. If necessary, an employer also may request medical documentation to support the employee’s request, and then determine if that accommodation or an alternative effective accommodation can be provided, absent undue hardship.

Similarly, if an employee requested an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.

H. Age
 
H.1.  The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group.  Do employees age 65 and over have protections under the federal employment discrimination laws? (6/11/20)

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older.  The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age.  However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison. 

Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities.  As such, they may request reasonable accommodation for their disability as opposed to their age.
 
I. Caregivers/Family Responsibilities
 
I.1.  If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations? (6/11/20)

Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics.  For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.

J. Pregnancy

J.1.  Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy? (6/11/20)

No.  Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy.  Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

J.2.  Is there a right to accommodation based on pregnancy during the pandemic? (6/11/20)

There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.

First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability.  If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.   

Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.  Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.   

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