The coronavirus pandemic does not absolve employers of their Americans with Disabilities Act responsibilities, a U.S. Equal Employment Opportunity Commission official told attendees at an April 8 American Bar Association conference.
And as the pandemic evolves and the country’s response shifts, employers must remember that ADA regulations still require individualized assessments for employees and applicants with disabilities. "There are likely to be significant changes to key underlying assessments in the ADA space, namely what constitutes a direct threat, and what rises to an undue hardship," Andrea Lucas, an EEOC commissioner, said, cautioning that she was not speaking for the full commission.
Going forward, "it's going to be even more important to take a very careful, highly individualized look at all COVID-19 related health and safety measures as well as accommodation requests related to them," she continued.
'Undue hardship' and 'direct threat'
The ADA requires that employers provide needed accommodations to workers with disabilities, unless such adjustments would cause an undue hardship — a showing that generally requires an individualized assessment.
Even when dealing with straightforward health and safety measures, employers that use bright-line rules must remember that the ADA’s accommodation mandate means "COVID-19 is not a get out of jail card for showing undue hardship," Lucas said. The coronavirus pandemic "doesn’t automatically guarantee that an employer can deny as an undue hardship any and all requested accommodations to health and safety policies and procedures at on-site workplaces — including mask requirements."
New information from the federal government, revised orders from state and local officials and vaccination rate data could affect such analyses. For example, if an employer previously excluded from the workplace an individual who could not wear required personal protective equipment because of a disability or a religious belief, such updates could affect that hardship analysis.
"As the outbreak lessens and state or local public health officials conclude the science and data no longer supports imposing certain restrictions within the jurisdiction, it may be harder for employers to establish that there's no way to safely permit an employee to not wear a mask," Lucas explained. Employers may be able to, for example, allow an employee to work alone in an individual office or work a modified schedule.
Employers also may find themselves in the difficult position of interpreting conflicting messages from state and federal authorities. In that case, employers will need to balance needs, Lucas said — namely, the desire to keep employees safe and continue operations while also including employees with disabilities previously excluded from the workforce.
Similarly, the ADA still requires that employers perform individualized assessments when evaluating whether a worker with a disability poses a direct threat in the workplace. If an individual poses a direct threat to their own health and safety or that of others — and that threat can’t be mitigated with an accommodation — they are not eligible for the law’s protections. That’s still the case during the pandemic, Lucas said, and employers may need to consider how the situation on the ground is changing — not just in the U.S. as a whole, but with respect to their location and workplace conditions.
Despite EEOC’s previous COVID-19 guidance and subsequent additions to it, employers still have asked the commission for formal clarity on a few issues, primarily whether businesses can incentivize the coronavirus vaccine without running afoul of federal law.
A group of employers and business organizations implored the commission in February to answer that question. It has not, as of press time, done so, but employment law attorneys said last month that movement is expected "soon." Additionally, reporting by Law360 found that the commission’s legal counsel recently indicated that guidance is forthcoming.
Lucas said she and the rest of the commission is "very aware" that stakeholders are looking for additional guidance but did not promise any updates; "I'm hoping that the agency will continue to lead in this area of tackling hard questions and helping employees and employers navigate the pandemic and their duties and obligations."