EEOC Provides Guidance on Reasonable Accommodations and Employee Testing When Returning to Work


The federal Equal Employment Opportunity Commission (EEOC) updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” resource to expand upon its guidance on some issues of concern to employers – reasonable accommodations and employee testing.

Reasonable Accommodations. The Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with disabilities to enable them to perform the essential functions of their jobs or to enjoy equal benefits and privileges of employment. This obligation continues regardless of the pandemic, and applies equally to critical infrastructure or essential workers. Thus employers must engage in the interactive process with all employees with regard to any request for accommodation, which includes obtaining medical information to support the request where the need for accommodation is not obvious, as well as an exploration of possible accommodations. Because of the pandemic and if the need is urgent, however, employers may choose to forego or shorten the exchange of information and provide an accommodation on a temporary basis, subject to changing circumstances.

Accommodations need not be provided if they pose an undue hardship. The circumstances of the pandemic may cause an undue hardship where it would not have done so prior to the pandemic. The EEOC recognizes that current circumstances may create “significant difficulty” in acquiring or providing certain accommodations. For example, it may be significantly more difficult at the current time to conduct a needs assessment or to obtain certain items required for an accommodation. Additionally, it may be significantly more difficult to provide temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.

Moreover, the EEOC acknowledges that, while expense is not normally a significant consideration (as compared with an employer’s overall budget and resources), current economic conditions, such as the loss of some or all of the employer’s income stream or the amount of discretionary funds available in consideration of other expenses, makes expense relevant to the undue hardship assessment. The employer must still weigh the cost of an accommodation against its current budget, and must consider no-cost or low-cost alternatives.

Return to Work Testing. According to the EEOC, under the current circumstances, employers may administer (or require to be administered) a test to employees before they enter the workplace to determine if they have the virus. Employers should ensure that such tests are accurate and reliable, in accordance with guidance from the U.S. Food and Drug Administration. Keep in mind, however, that there may be false negatives or positives, and that testing will not reveal future infection. In addition, this guidance may change as the pandemic eases.