ADA in the Age of COVID-19

What You Need To Know

ADA protections during the Coronavirus pandemic
The COVID-19/Coronavirus pandemic has affected businesses in many different ways. Aside from businesses shuttering their doors or modifying operations, businesses have had to adapt to drastically changing work force. In adapting to these changes, it is important for employers and employees to understand how the Americans with Disabilities Act (ADA) applies in the adaptive workplace environment. One of the big questions that has arisen is whether a Coronavirus diagnosis is covered under the ADA.

What is the Americans with Disabilities Act?
The ADA protects employees from discrimination in the workplace and requires employers to make reasonable accommodations for those employees with a disability. It is important to understand what the ADA and other relevant federal statutes allow an employer and employee to do during this challenging time. The ADA continues to apply during the Coronavirus pandemic, but the ADA does not typically interfere with CDC recommendations.

How Does the ADA Affect Employers?
During a pandemic such as the one we are experiencing now, ADA-covered employers may ask their employees if they are experiencing symptoms of the pandemic virus. For Coronavirus, these may include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA. Additionally, employers may take the temperature of employees when they arrive to work to ensure they are not exhibiting symptoms of the Coronavirus. The employer needs to keep records of these temperature readings as they are medical information, but it must be kept separate from regular employment information, in order to protect confidentiality.

If an employee is exhibiting Coronavirus symptoms, the ADA does not prevent employers from requiring employees to stay home, even if the employee has not been diagnosed with Coronavirus. Furthermore, an employer can require a health care release to come back to work, for example a doctor’s note or a certification of fitness from a clinic.

Additionally, an employer may disclose name of employee to public health agency when they discover the employee has Coronavirus. Employers may screen new hires or applicants for symptoms after a conditional hire offer if they screen all such new applicants in the same manner. Additionally, employers may withdraw a job offer if the potential hire is exhibiting Coronavirus symptoms.

Employees with disabilities that put them at high risk for complications of Coronavirus may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.

The ADA requires employers to make reasonable accommodations to certain employees, including employees who have an underlying disability that puts them at a heighten risk of Coronavirus. It is important these employees request a reasonable accommodation from their employer to limit the possibility of exposure. Low-cost solutions achieved with materials already on hand or easily obtained may be effective. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as:

• Designating one-way aisles to prevent cross traffic;
• Marking floors with tape to ensure minimum distances between people;
• Installing plexi-glass or other barriers to ensure minimum distances between customers and coworkers;
• Providing masks, hand sanitizer, sanitizing wipes, and other hygienic protections.

In addition, employees with disabilities that put them at high risk for complications of Coronavirus may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic. However, an employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship ,” which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now. The employer is required to do an individual assessment to determine whether the accommodation request would be an undue hardship. An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. “Significant expense” does not mean an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.

How Does the ADA Affect Employees?
It is important to realize the ADA protects those with underlying disabilities, but it is not the only federal statute which relates to workplace safety. The other major federal statute to be aware of is Occupational Safety and Health Act (OSHA). This act allows employees to refuse to work if they reasonably believe they are in imminent danger at the workplace. However, the employee must have a specific fear of infection that is based on fact—not just a generalized fear of contracting Coronavirus in the workplace and the employer cannot address the employee’s specific fear in a manner designed to ensure a safe working environment.

If you do not feel comfortable going to work during this pandemic, express these concerns to your employer and request reasonable accommodations be made, for example, that you be allowed to work from home. If you cannot work from home, ask your employer for reasonable accommodations such as personal protection equipment to reduce your exposure, such as masks, gloves, hand sanitizer, ample social distancing from others, and a heightened cleaning process for the workplace.

If you have questions or concerns as an employer or employee during the COVID-19/Coronavirus pandemic, reach out to an attorney immediately. Yanni Law is here to answer your questions during these trying times.

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