The rapid spread of COVID-19 across the United States has a significant impact on the Americans with Disabilities Act (ADA) and covered employers. Are you and your company complying with the procedures set forth by the ADA during this pandemic? This blog discusses how employers can stay within the confines of the ADA and Rehabilitation Act amid these times of uncertainty.
While the Equal Opportunity Employment Commission (EEOC) continues to enforce the provisions of these laws, the laws don’t interfere with or prevent employers from following the guidelines and suggestions made by the CDC and/or state or local public health authorities regarding COVID-19. Be sure to stay current with new developments regarding local workplace safety, and understand that this is a very fluid situation, and interpretations of the ADA and Rehabilitation Act are subject to change as new information becomes available.
Importance of pandemic preparation/prevention as it relates to the ADA/Rehabilitation Act:
- The ADA regulates employers’ disability-related inquiries and medical examinations for all applicants and employees, including those that don’t have ADA disabilities.
- The ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e. significant risk of substantial harm even with reasonable accommodation based upon objective information). Based on information from the CDC and public health authorities, the COVID-19 pandemic meets the direct threat standard.
- The ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic
- What is undue hardship? An accommodation poses an “undue hardship” if it results in significant difficulty or expense for the employer, considering the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business.
Below are some Frequently Asked Questions on how employers can navigate the ADA/Rehabilitation Act during the Coronavirus crisis.
Are there ADA-compliant ways for employers to identify which employees are more likely to be unavailable for work in the event of a pandemic?
Yes. Employers may make inquiries that are not disability related. An inquiry is not disability-related if it is designed to identify potential non-medical reasons for absence during a pandemic (e.g., curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that increase the risk of complications).
May an employer require new entering employees to have a post-offer medical examination to determine their general health status?
Yes, if all entering employees in the same job category are required to undergo the medical examination and if the information obtained regarding the medical condition or history of the applicant is kept confidential and separate from the other applicants.
May an employer rescind a job offer made to an applicant based on the results of a post-offer medical examination if it reveals that the applicant has a medical condition that puts her at increased risk of complications from influenza or a related virus?
No, unless the applicant would pose a direct threat within the meaning of the ADA.
May an ADA-covered employer send employees home if they display influenza-like symptoms during the COVID-19 pandemic?
Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. This means an employer can send home an employee with COVID-19 or symptoms associated with it.
During the COVID-19 pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?
Employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat. Responses to these inquires must be kept confidential by employers.
During the COVID-19 pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?
Generally, measuring an employee’s body temperature is a medical examination. However, if pandemic influenza symptoms become serious enough to invoke CDC involvement, as has COVID-19, then employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
When an employee returns from travel during the COVID-19 pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about exposure to the virus during the trip?
No. These would not be disability-related inquiries. An employer may also ask whether employees are returning from locations where COVID-19 is prevalent, even if the travel was personal. Similarly, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.
During the COVID-19 pandemic, may an ADA-covered employer ask employees who are asymptomatic to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to COVID-19 complications?
Probably yes, IF ADA-covered employers have enough objective information from public health advisories to reasonably conclude that employees face a direct threat if they contract COVID-19. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of COVID-19 complications.
May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during the pandemic?
Yes. Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation. In addition, employees with disabilities that put them at high risk for complications of COVID-19 may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.
Must employers make reasonable accommodations when employees request to telework?
It depends. Teleworking is one of the listed accommodations that should be afforded by ADA-covered employers, absent undue hardship. However, for certain industries such as infrastructure, working from home likely inhibits the ability of these companies to function properly, creating an undue hardship on the ADA-covered employers. Thus, whether employers are required to grant these requests depends on the nature of the job function and should be evaluated on a case-by-case basis.
During the COVID-19 pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?
Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.
During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of COVID-19 infection?
Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
During the COVID-19, must an employer continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship?
Probably yes. An employer’s ADA responsibilities to individuals with disabilities continue during an influenza pandemic. Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can it lawfully exclude him from employment or employment-related activities. If an employee with a disability needs the same reasonable accommodation at a telework site that he had at the workplace, the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should cooperate to identify an alternative reasonable accommodation. The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.
During the COVID-19 pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?
Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.
If an employer is hiring, may it screen applicants for symptoms of COVID-19?
Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, provided it does so for all entering employees in the same type of job. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.
May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
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.
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. CDC has issued guidance applicable to all workplaces generally, but also has issued more specific guidance for particular types of workplaces (e.g. health care employees).
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?
Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
May an ADA-covered employer require employees who have been away from the workplace during the COVID-19 pandemic to provide a doctor’s note certifying fitness to return to work?
Yes. Such inquiries are permitted under the ADA either because the COVID-19 pandemic is severe, and they therefore 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 the COVID-19 pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form.
An employer or employee should contact knowledgeable counsel concerning employment law and the recent federal and state legislation that has been enacted. This is a fluid situation and we will update this blog as more information becomes available.