COVID-19 and the ADA
The Equal Employment Opportunity Commission (EEOC) recently updated guidance about pandemic preparedness in the workplace and the Americans with Disabilities Act (ADA). Here, we have provided some answers to the most commonly asked ADA/COVID-19 questions received by the ILR School’s Yang-Tan Institute on Employment and Disability, based on information provided by the national Centers for Disease Control and Prevention and other state and local public health authorities. This guidance may change, and will be updated, as response to the pandemic evolves.
Are the requirements of the ADA suspended in light of the global pandemic and its impact on workplaces?
No. Despite the evolving nature of the workplace during this time of crisis, the EEOC has been clear that all anti-discrimination laws which they enforce still apply to covered employers. These include the ADA, The Genetic Information Nondiscrimination Act (GINA), Title VII of the Civil Rights Act, The Age Discrimination in Employment Act and the Rehabilitation Act.
Can I monitor employees for signs of illness?
Yes. 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. These symptoms can include fever, chills, cough, shortness of breath or sore throat. At this point in time, employers are permitted to measure employees’ body temperature as a workplace health and safety measure, but only of employees who are physically present (not those working from home). Remember that all medical information must be kept confidential.
Can I require employees who appear ill to remain home?
Yes. Employees showing signs or symptoms of COVID-19 may reasonably represent a ‘direct threat’ to others in the workplace. This response would also be in line with current CDC guidelines. However, an employee with a disability cannot be deemed a direct threat to themselves or others based on myths or misperceptions. These decisions must be rooted in observable facts or symptoms. The employee may be required to remain home for the duration of the illness and necessary isolation period, following the advice of the CDC and local health officials.
What type of medical information can I request from employees who claim they can’t work due to a diagnosis of COVID-19?
Employers may request documentation of a diagnosis in order for an employee to justify absence from work, or to verify that they are cleared to return to work. Employers should be flexible regarding the type of documentation provided, due to that fact that many healthcare systems are currently overwhelmed. The Equal Employment Opportunity Commission recommends that employers plan, in advance, who will receive the information and how the process of notification of exposure will proceed in the workplace. The ADA requires that an employer keep all medical information confidential, even if that medical information is not about a disability, so the name of the infected individual should be protected to the greatest extent possible. An employer may still report infections to the appropriate health authorities for the purposes of data collection.
Is a COVID-19 diagnosis considered a disability under the law?
Our understanding of this virus is evolving so guidance may be updated over time in this regard. Some employees may experience mild to moderate illness of brief duration which would not meet the definition of disability under the ADA. Others may experience impacts that are long-lasting and may rise to the level of a disability. For example, a person who has been placed on a ventilator may experience permanent damage to their respiratory system or cognitive impairment, which could meet the definition of a disability. Each situation must be examined on a case by case basis, as with all ADA-related determinations.
Can I ask an employee if they have an underlying condition that would make them more vulnerable to the virus?
No. Without symptoms, this is a disability inquiry that is prohibited by the ADA. Don’t assume every person with a disability will be at increased risk. Not every disability will increase a person’s risk of complications related to COVID-19.
Am I obligated to accommodate employees with underlying health conditions which make them more vulnerable to serious infection?
Employees with underlying conditions may request reasonable accommodations under the ADA to protect them from exposure to illness. The CDC has identified a number of medical conditions including chronic lung disease, diabetes and heart conditions which can put individuals at higher risk. Employers may request verification that the employee has a disability, and that the accommodation is needed because the particular disability may put the individual at higher risk of COVID-19 infection.
For more information on COVID-19 and the ADA, you can access an archived webinar recording, produced by the Yang Tan Institute for the Employer Assistance and Resource Network for Disability Inclusion.