Evaluating ADA Issues Through the COVID-19 Lens
By Matthew Scully & Jonathan Eggert
Published: Tuesday, October 13, 2020 3:34 pm
Due to the COVID-19 pandemic, employers are taking a second look at even the most routine of workplace situations. Where multi-employee Monday morning watercooler gatherings once took place, empty spaces with social distancing reminders have appeared. Common candy jars have been replaced by hand sanitizer dispensers. Application of the Americans with Disabilities Act ("ADA") is no exception. The unusual circumstances surrounding COVID-19 have forced employers to take a fresh look at the ADA and raised a litany of questions that were nonexistent in the pre-pandemic world.
As an initial matter, employers have to decide how employees are going to get back to work, and the extent to which employers can limit an employee's access to the workplace is a common ADA concern. This involves a number of issues:
- Workplace Testing: Many employers wish to require all employees to pass temperature checks to measure for potential COVID-19 symptoms before entering the workplace, but are concerned about the ADA implications. After employment has commenced, medical exams under the ADA are typically only permitted when the exam is "job-related and consistent with business necessity." The EEOC considers medical exams, such as temperature checks, to be "job-related and consistent with business necessity" when requested based upon the employer's reasonable belief that the employee poses a direct threat to the health and safety of himself or others. Because the CDC and state and local health authorities have acknowledged community spread of COVID-19, the EEOC has found a direct threat exists to permit temperature checks. Employers can also require employees to take an initial or periodic COVID-19 test to detect the presence of the novel coronavirus. The EEOC has also confirmed employers may choose to ask employees entering the workplace if they have COVID-19 or are experiencing symptoms associated with COVID-19 without violating the ADA. Under current conditions, employers may bar employees from the workplace for refusing to submit to the temperature checks, COVID-19 tests, or COVID-19-symptom related questions.
- Antibody Testing: Employers cannot mandate antibody testing pursuant to EEOC guidelines because such tests do not meet the ADA's "job related and consistent with business necessity" standard for medical examinations or inquiries for current employees.
- Personal Protective Equipment ("PPE"): Due to both the increase in incidence of COVID-19 and the enactment of state and local ordinances, the vast majority of employers are requiring employees to wear some level of PPE, such as masks and/or gloves. The EEOC has confirmed an employer may generally require an employee to wear PPE and observe infection control practices without running afoul of the ADA. However, employers are still required to provide reasonable accommodations under the ADA. As a result, an employer may be required to permit modified facemasks in certain situations. Importantly, the employer is not necessarily required to provide the exact accommodation requested. Rather, the employer and employee should engage in an interactive process to determine an effective accommodation. As with any ADA reasonable accommodation request, the employer may ask for documentation of any functional limitations and the need for the specific accommodation sought.
The rise of COVID-19 has also resulted in a significant change in how work is performed, including teleworking.
- Teleworking: Many employees are requesting telework indefinitely due to fear of contracting COVID-19. At its most basic level, the ADA requires employers to provide reasonable accommodations to individuals with (1) a disability or (2) a record of being disabled. Teleworking can be a reasonable accommodation in certain instances. However, the fear of contracting COVID-19 is not, in and of itself, a disability. The EEOC has made clear that if there is no disability-related limitation necessitating an accommodation, the employer need not provide telework as an accommodation. If, on the other hand, the employee has a documented medical condition that makes them more vulnerable to COVID-19, teleworking may be a viable reasonable accommodation if there is not another accommodation that would permit him or her to perform essential job functions and the employee can continue to perform the essential functions of his or her job if working remotely.
- Accommodations Due to Vulnerable Family Members: ADA protections do not extend to an employee's family member. Thus, the ADA does not require that an employee be provided with the opportunity to telework in order to protect a family member who has an elevated-risk of complications from contracting COVID-19.
- Other Laws. Employers should also be careful not to involuntarily exclude employees from the workplace due to perceived disabilities. Ultimately, employers cannot force employees to accept an accommodation if not requested. Additionally, excluding an employee based on a protected characteristic (such as pregnancy) may implicate other employment laws, such as Title VII of the Civil Rights Act. Finally, as applicable, employers must comply with the leave provisions Families First Coronavirus Response Act.
Employers should also remember that the ADA includes extensive rules related to the confidentiality of medical information. Generally, the ADA mandates that employers keep all medical information learned about an applicant or employee confidential. Such information typically includes both a COVID-19 diagnosis and information regarding an employee's reasonable accommodation request. While employers may not notify other workers of the identity of an employee who tests positive for COVID-19, the employer may disclose the name of the employee to a public health agency. Additionally, the ADA does not restrict an employer from notifying employees that a specific individual who has tested positive for COVID-19 is teleworking for an extended period, as long as the reason for the teleworking is not disclosed. The EEOC has also confirmed the ADA does not bar an employee from disclosing that their coworker is experiencing COVID-19 symptoms to a supervisor.
When viewing new ADA issues through the COVID-19 lens, it is important that employers remember one of the statute's main tenants: flexibility. By remaining flexible and continuing to monitor CDC and EEOC guidance updates, employers can get a clear view of ADA issues and make decisions that comply with the law while minimizing impacts on their business.
Matthew Scully is a Partner at Burr & Forman, practicing in the firm's labor and employment group where he advises healthcare providers on the employment matters they may face. Jonathan Eggert is an associate with Burr & Forman who also advis