EEOC publishes YouTube webinar on ADA, Rehabilitation Act and coronavirus

The EEOC published a short 42-minute YouTube video on the ADA, Rehabilitation Act and coronavirus.  The webinar fleshes out the EEOC’s recent coronavirus guidance and identifies certain questions that it believes it is currently unable to answer, including the following:

• Whether coronavirus (COVID-19) is or could be a disability protected by the ADA?

Questions addressed include, in addition to those raised in the above guidance:

• Whether an employer can ask an employee if his/her family has tested positive for coronavirus? Here, the EEOC believes that question is too narrow, because it is limited to questions about the employee’s family and as such the EEOC says it believes the question might implicate the Genetic Information Nondiscrimination Act (GINA); therefore, the EEOC urges employers instead to ask if the employee has had any such contact with anyone whom he/she knows to have tested positive.
• Whether an employer, when disclosing that someone has tested positive, can disclose that person’s identity? The EEOC repeats its position in its above guidance’s instruction that employers, upon learning of a positive coronavirus test result, have some ability to disclose the same within a true need-to-know basis, and that it may be able to disclose to co-workers that someone has tested positive, but it repeats the employer should not generally report the person’s identity. That is true, the EEOC says, even where coworkers may be guessing or attempting to guess at the person’s identity. It gives as an example that the company may report that a person is teleworking without telling his coworker’s that the reason for his absence from the workplace is a positive test result. Likewise the EEOC addresses the issue where an employer may be faced with a concern that disclosing something as general as “someone at this location” or “someone on the 4th floor” has tested positive, is not sufficient information for concerned coworkers; here too, the EEOC restates its position that, even in that situation, the employer should not disclose the person’s identity. 
• Whether allowing workers to telework during the coronavirus crisis may be later used by a disabled worker requesting the right to telework after the coronavirus crisis? The EEOC answers flatly, no, the fact that an employer allows teleworking during this coronavirus crisis cannot be used as evidence that teleworking might be a reasonable accommodation outside the coronavirus crisis. However in an unhelpful muddling of its answer, the EEOC added that it “could” be somehow relevant to showing that telework was in general feasible at least in some circumstances, theoretically.

The EEOC says that, while teleworking, HR professionals and others with a need-to-know medical information must store information, even at home, in a confidential manner, including not leaving notes where they can be seen. In a frankly absurd moment, the EEOC actually recommends HR professionals consider writing their notes while teleworking “in code.”

The EEOC noted that, during the coronavirus crisis, employers may be having difficulty obtaining doctor’s notes related to ADA accommodation requests and suggests that employers consider whether other documentation might suffice — arguably at least until a doctor’s note becomes available — such as a “health insurance record” or “a prescription.”

While not particularly robust or helpful on some of those difficult questions — and adding to the confusion on some questions — the webinar is nonetheless recommended for HR professionals to review as soon as possible.