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Employee Rights under the ADA during the COVID-19 Pandemic - what you need to know

The Equal Employment Opportunity Commission has issued new guidance on the interplay between the current Coronavirus crisis and the Americans with Disabilities Act ("ADA"). That guidance can be read in full here

https://www.eeoc.gov/facts/pandemic_flu.html

The ADA protects employees from disability discrimination and limits what questions an employer can ask you, and what medical examinations your employer can require.  The new guidelines explain certain changes related to the current crisis.

1. Disability-related Medical Inquiries and Medical Examinations.

The ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances, including situations involving a "direct threat."

An inquiry is "disability-related" if it is likely to elicit information about a disability. For example, asking an individual if his immune system is compromised is a disability-related inquiry because a weak or compromised immune system can be closely associated with conditions such as cancer or HIV/AIDS. In contrast, an inquiry is not disability-related if it is not likely to elicit information about a disability, such as about symptoms of a cold or the seasonal flu, which are not disabilities.

A "medical examination" is a procedure or test that seeks information about an individual's physical or mental impairments or health.

An employer cannot ask employees disability-related inquiries or require medical examinations unless they are job-related and consistent with business necessity, based on objective evidence reasonably available to the employer that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a "direct threat" due to a medical condition.

2. What is a "direct threat" during the COVID-19 Pandemic?

Direct threat is an important ADA concept during an influenza pandemic. A "direct threat" 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 individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA.

The EEOC has determined that the COVID-19 pandemic meets the direct threat standard based on guidance of the CDC and public health authorities as of March 2020.  This may change if the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19.

3. Reasonable accommodation.

Generally, the ADA requires employers to provide reasonable accommodations for known limitations of employees with disabilities, unless it would pose an "undue hardship" on the employer's business.  A "reasonable accommodation" is a change in the work environment that allows an individual with a disability to have an equal opportunity to apply for a job, perform a job's essential functions, or enjoy equal benefits and privileges of employment.

Based on these determinations, the EEOC has determined that during the COVID-19 pandemic, employers may:

  • Ask current employees if they display influenza-like symptoms during a pandemic.

  • Ask employees who become ill with symptoms of influenza-like illness at work to go home.

  • Ask employees who report feeling ill or call in sick if they are experiencing influenza-like symptoms, such as fever or chills, a cough or sore throat.

  • Take an employee's body temperature.

  • Follow the advice of the CDC and state/local public health authorities and ask employees who return from traveling to certain locations to stay at home for a period of time in which they do not display symptoms, even when travel was for personal reasons.

  • Ask employees to telework.

  • Require infection-control practices be followed, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal.

  • Require employees to wear personal protective equipment such as face masks and gloves.

  • Require employees absent from work due to COVID-19 to obtain a doctor's note before returning to work.

The COVID-19 pandemic affects everyone. Employees have the right to a safe workplace, which allows your employer to ask you questions or require certain actions to make sure everyone in the workplace is safe during this pandemic.

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