Much has changed in the short (but seemingly much longer) time we have been living with the COVID-19 pandemic, but many things remain the same. This includes the obligations employers have under the Americans with Disabilities Act (ADA). While employers still must avoid disability-based discrimination and make reasonable accommodations for disabled candidates or employees, the unique health, safety, and privacy issues raised by the virus can create confusion or uncertainty.
The Equal Employment Opportunity Commission (EEOC), which enforces workplace discrimination laws, emphasizes that companies need to remain mindful of their ongoing anti-discrimination responsibilities during the pandemic. However, the EEOC also recognizes that employers should heed the guidance of local authorities and national health officials like the CDC concerning the health and safety of their workforces. To bring clarity to an unprecedented and continuously evolving situation, the EEOC has issued guidance on several ADA-related issues that intersect with the pandemic.
Some highlights of the EEOC’s guidance include:
Screening Employees and Candidates for Symptoms of COVID-19
Ensuring that any employees who exhibit symptoms of COVID-19 stay at home and away from the workplace is an essential element of workplace safety. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace, and according to the EEOC, “the ADA does not interfere with employers following this advice.” But screening can raise privacy and discrimination issues if handled inadequately.
The EEOC advises the following for screening of existing employees and job candidates for COVID-19:
- During the pandemic, ADA-covered employers may ask their employees if they are experiencing symptoms of COVID-19 such as fever, chills, cough, shortness of breath, or sore throat.
- 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 as a precaution.
- Employers may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as they do so for all employees in the same types of jobs.
- Employers may require employees who had COVID-19 to provide them with clearance from a physician if they wish to return to work.
- Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
In the context of COVID-19, the need to make reasonable accommodations does not relate to individuals who have or show symptoms of the virus. Rather, the issue arises with regard to individuals who have disabilities that may put them at higher risk for infection.
For jobs that can only be performed in the workplace, employers may need to make reasonable accommodations that offer increased protections for disabled employees. Many employers likely have taken steps for their workforces as a whole that could constitute reasonable accommodations, such as designating one-way aisles or installing plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers.
Additionally, “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 the essential functions of the job safely while reducing exposure to others in the workplace or while commuting.”
As to employers’ obligations to make reasonable accommodations for COVID-19, the EEOC also advises:
- 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 and to determine whether the employee’s disability necessitates an accommodation. Possible questions can include:
- how the disability creates a limitation;
- how the requested accommodation will effectively address the limitation;
- whether another form of accommodation could effectively address the issue; and
- how a proposed accommodation will enable the employee to continue performing the “essential functions” of their position.
- An employee who was already receiving a reasonable accommodation before the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship.
- Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens.
- In some instances, an accommodation that would not have posed an undue hardship before COVID-19 may raise one now. The circumstances of the pandemic, such as a dramatic loss of revenue, can be relevant to whether a requested accommodation can be denied because it poses an undue hardship
If you have questions regarding your company’s ADA obligations during and after the pandemic, or have any other employment-related concerns arising from COVID-19, please contact the employment law attorneys at Sommers Schwartz today. We are working remotely and are still here to help.