This article is accurate as of April 7, 2020, and is subject to change when either the guidance, Centers for Disease Control (CDC) instruction or state/local authority instruction evolves during this rapidly changing pandemic. This article borrows heavily from and closely tracks the Equal Employment Opportunity Commission (EEOC) guidance available at https://www.eeoc.gov/facts/pandemic_flu.html
Employers are wondering; how is what I know about the Americans with Disabilities Act Amendments Act (ADA) relevant to today’s COVID-19 legal environment? How do I maintain compliance?
The goal of the ADA is to protect employees from discrimination at work based upon employees’ disabilities. Under normal circumstances, the ADA protects employees by, among other things, (1) prohibiting employers from inquiring of employees whether they have a disability (typically, medical conditions), (2) prohibiting employers from excluding those who do have a disability from the workplace, and (3) requiring employers to provide reasonable accommodations for those with disabilities, unless such accommodation would be an undue hardship on the company.
The EEOC issued guidance on Pandemic Preparedness in the Workplace Under the ADA in October 2009 with respect to the H1N1 virus. That guidance was updated in March 2020 to specifically provide guidance relative to the current COVID-19 pandemic.
How does the pandemic declaration and this COVID-19 pandemic alter or expand the guidance in this area?
First, as we’ve discussed in prior articles https://parsonsbehle.com/publications/covid-19-family-medical-leave-act-and-paid-time-off-employer-questions-answered, and https://www.parsonsbehle.com/publications/emerging-questions-for-employers-under-the-families-first-coronavirus-response-act-and-other-coronavirus-employment-issues, employers still should not initiate the conversation with an employee to ask whether they have a disability. The key here is for employers to focus their inquiries on symptoms rather than disabilities. An employer may not ask whether an employee has a compromised immune system, but may do the following:
- Ask whether he or she is having any COVID-19 symptoms, if an employee calls in sick
- Restrict travel to places with known community spread (whether travel is for work or personal reasons)
- Require employees to stay home from work for 14 days if he or she has traveled to locations with known community spread
- Require health tests for returning to work
Similarly, because COVID-19 has become widespread in the community, and the CDC has determined that symptoms and risk of spread are more severe than the seasonal flu or the H1N1 virus, an employee’s body temperature may be measured by the employer as a condition for reporting to work. Employers should maintain all employee medical information as confidential. Such information should be kept within separate medical forms and files.
Second, the determination that COVID-19 is a pandemic does have implications under the ADA. Remember, the ADA prohibits employers from excluding individuals who have a disability. The exception to the rule applies when, even after making a reasonable accommodation, an employer excludes an employee because he or she is considered a “direct threat” under the ADA. A direct threat in this context is a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If an employee poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA.
After March 11, 2020, – the date the World Health Organization declared COVID-19 a pandemic, the EEOC determined that the COVID-19 pandemic meets the direct threat standard.
Whether an employee poses a direct threat in the workplace must be based upon objective, factual information, not subjective perceptions or irrational fears about a specific disability. The EEOC’s regulations identity four factors to consider to determine whether an employee poses a direct threat: (1) the duration of the risk (2) the nature and severity of the potential harm (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm.
Although the guidance states that employers should rely on the latest CDC and state or local public health assessments, which may change during a crisis and differ between states, employers are expected to make their best efforts to obtain contemporaneous, appropriate advice for their location and reasonably assess their workplace in light of the information.
The EEOC has now determined for us that COVID-19 meets the direct threat standard. In practical terms, this means the following: An employer can, and should, send home an employee with COVID-19 or its associated symptoms.
The third issue that arises under the ADA during a pandemic is that of reasonable accommodation. Although employers are expected to continue to provide reasonable accommodations for employees with known disabilities during the pandemic, barring undue hardship, the EEOC acknowledges the challenges of doing so in the current environment.
A reasonable accommodation is a change to the work environment that allows an employee with a disability to have an equal opportunity to perform the essential functions of the position or enjoy equal privileges and benefits of employment. As the guidance states, “[t]he 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.” Interim solutions between employers and employees to keep up productivity are encouraged. It is noted that those who requested or required accommodation in the workplace may require similar accommodation if working from home, or, perhaps many of the accommodations needed for the workplace environment are already present for employees at home.
Finally, only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, (such as, for example, a positive COVID-19 test under these pandemic circumstances), can it lawfully exclude him or her from employment or employment-related activities.
While the ADA is still relevant during COVID-19, employers are given some flexibility in its implementation during this public health emergency.
For more information about this or other related employment issues, contact Amy Lombardo by calling (208) 562-4900 or send an email to alombardo@parsonsbehle.com.
