In lecturing on how to deal with Americans with Disabilities Act (ADA) compliance issues in the context of COVID-19, the National Employment Law Institute's David K. Fram defaulted back to a phrase that often peppers his talks to employers on compliance topics: "How can I help you?"
Those "five magic words" should be the starting point for supervisors whenever an employee says they have trouble doing something, and the ongoing pandemic doesn't change that, Fram, the organization's director of ADA and EEO services, said during a NELI webinar last week.
"Everyone's world has been overtaken with COVID-19 questions," he said. "But these questions wouldn't be any different analytically than dealing with regular ADA questions."
Employers, Fram added, should be focused on finding the "quick, easy fix" and meticulously documenting every step of their ADA compliance process. However, he also identified several areas impacted by COVID-19 that could cause employers uncertainty about how the novel coronavirus interacts with the law.
Q: Is COVID-19 a disability under the ADA?
The Centers for Disease Control and Prevention has not determined whether COVID-19 is a disability, Fram said. The U.S. Equal Employment Opportunity Commission's technical assistance Q&A also does not address the question. That's because COVID-19 can present with or without a wide array of symptoms that could substantially limit a major life activity, but the disease is clearly an impairment, Fram said; "Impairment is the easiest question, because any disorder is an impairment."
Fram said an issue that has come up much more frequently during the pandemic is that someone with an underlying condition states that they're afraid of coming back to the workplace. In this situation, the employer must first determine whether that underlying condition constitutes a disability under the ADA.
No cases have to date have yet weighed in on a particular situation along these lines involving COVID-19, but there are past cases that employers may want to note. One of them is the 2016 case Moriss v. BNSF Railway Co., in which the 8th U.S. Circuit Court of Appeals held that susceptibility to an impairment — such as sleep apnea or diabetes — because of a high body mass index was not itself an impairment.
In a 2019 case that Fram said "is going to be really relevant in the COVID-19 context," the 11th Circuit held in EEOC v. South Tampa Massage Envy that the possibility that an employee might contract the ebola virus by visiting Ghana was not an impairment, either. This is an important ruling as employers decide to place workers who visited higher-risk places in quarantine or otherwise refuse to allow them to return to work. South Tampa suggests that an employee would not be able to sue her employer under the ADA over such a decision, Fram said.
"Voluntariness is also irrelevant," Fram said. He used the example of an employee contracting COVID-19 while attending a party without wearing a mask. But such factors are irrelevant, Fram said, because the employee still has an impairment.
Additionally, employees may have a record of an impairment that would prevent them from returning to the workplace due to the possibility of contracting COVID-19. In one 2019 case, Mestas v. Town of Evansville, the 10th Circuit held that an employee may have shown a record of a disability via doctor's notes over a two-year period in which he requested time off due to back pain. "I think we're going to see 'record of' cases coming up in the COVID context in the coming years," Fram said.
Q: Is on-site presence an 'essential function'?
Telework has become a way of life for many in the U.S. over the past seven months. In the ADA context, telework may qualify as a reasonable accommodation for an employee who has a disability, even if it has not traditionally been considered the type of "quick, easy fix" that Fram mentioned.
"My experience with most HR professionals is that work from home is not quick, simple and easy," Fram said. "But that has changed."
If an employer allowed an employee to begin working from home because of a disability, and this work arrangement prevented the employee from performing an essential function of her job, then the employer should document this and communicate it to the employee, Fram said.
Fram shared sample language for such documentation: "Because of an extraordinary situation in the workplace caused by COVID-19, you will be allowed to work remotely for a temporary period. We understand that you might not be able to perform all of your job's essential functions during this temporary period because you will be working remotely."
In the event an employer did not do so at the beginning of the arrangement, there are two other instances in which it might document this: When the person returns to the workplace, or in a performance review. The latter need not imply that the employer is dissatisfied, Fram said, but can "just note that it's a fact."
But is physical presence at a particular worksite an essential function of an employee's job? There are some cases in which courts have analyzed this question, Fram said. In the 2018 case Mosby-Meachem v. Memphis Light, Gas & Water Division, the 6th Circuit held that physical presence might not have been an essential function of an attorney's job. But the 7th Circuit held in Bilinsky v. American Airlines, Inc. that a communications specialist's job did require physical presence in order to perform on-site crisis management.
"I think this is where so many of the COVID-19 cases are going to come up," Fram said. He also noted that the EEOC's technical assistance document touches on the subject of refusing to renew an employee's request to continue working from home after COVID-19.
"Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request," per EEOC. "In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information."
The agency's position reinforces the importance of documenting whether an employee is performing all of her essential functions while working from home, Fram said. Having accurate job descriptions can also be important, he added.
Q: How can employers respond to an employee who believes co-workers are not being careful about preventing the spread of COVID-19?
Similar to the point on remote work, Fram said that reasonable accommodation issues are "coming up more and more" in the context of COVID-19. Those who have an underlying condition may feel that their co-workers make the workplace a less-than-safe place to return to during a pandemic.
"You're going to have employees saying 'our co-workers aren't playing it very safe … I don't want to be in the workplace with them,'" Fram said. "That raises this issue."
In the event that this occurs, Fram said employers might explore a list of possible, reasonable accommodations. Courts don't appear to be getting involved with changing who an employee's co-workers are, he noted, but employers may be able to find ways to separate the employee in the workplace or otherwise continue telework. If telework is not an option, leave or reassignment might serve as alternatives.
"I have to say, I don't like my answer to this," Fram said. "But if the courts stick with this line of approach … then this is where I think they would come out on an issue like this."
An employee might also say that they require leave due to an underlying condition that prevents them from returning to the workplace. In this situation, the employer could first start to look at either physical alterations to the workplace that would allow the work to be done safely or telework.
But then the question of leave might come up again. The EEOC has previously stated that indefinite leave "will constitute an undue hardship" and does not need to be provided as a reasonable accommodation, Fram noted. "Here's one of these pretty tragic answers I have to give: We don't know when this is going away," he said. "Isn't that indefinite leave? I think it probably is."
Employers might consider reassignment "as a last resort," Fram said. Employers, he added, should also ensure that the employee has not already exhausted available leave under the Family and Medical Leave Act or other applicable leave laws.
Q: Is a temperature check considered a 'medical exam'?
The answer is yes, Fram said, which means employers may not be able to perform temperature checks on applicants before a job offer is made.
"If we're giving a temperature check for everyone who comes in for a tour of the factory, that would be different," Fram said. "But if we're including applicants in that group that is taking the tour, I'd be really afraid to take that person's temperature because that would be a pre-offer medical exam."
At the employment stage, any exam given by an employer must be job-related and consistent with business necessity, Fram said. This essentially means that the employer has a reasonable belief based on objective evidence that the person cannot perform an essential function because of a medical condition, or the employer has legitimate concerns about a direct threat based on a medical condition, he added.
"That's going to help us answer some COVID questions," Fram said. Temperature checks meet this standard because there is a "legitimate concern about direct threat," he noted, which the EEOC has also said.
Even so, employers must keep information derived from temperature checks confidential, Fram said. Exceptions include supervisors, managers and those in charge of first aid and safety, among others. But medical information, including a positive COVID-19 test result, cannot be shared with co-workers, Fram said; "That's just setting up a future EEOC charge or lawsuit."
Instead employers can focus on what co-workers actually need to know. "What you really need to tell the co-workers is that they may have been exposed to an employee in the workplace on that shift who tested positive, but you don't need to disclose Joe's name," Fram said.