Emily P. Crowley is a business and employment attorney at Boston law firm Davis Malm. Opinions are the author's own.
As businesses and individuals navigate the challenges of returning to work in the COVID-19 era, the federal agency responsible for enforcing anti-discrimination laws, the U.S. Equal Employment Opportunity Commission (EEOC), has issued valuable guidance addressing employers' and employees' rights and responsibilities under the Americans with Disabilities Act (the ADA).
The guidance, which the EEOC updated several times, emphasizes that while the ADA still applies in the context of the COVID-19 pandemic, it does not prevent employers from following guidelines set out by the Centers for Disease Control and Prevention (CDC) or other public health authorities to keep employees and workplaces safe.
Screening employees for COVID-19
The guidance advises that the ADA allows employers to screen employees for COVID-19 because an employee infected with the virus poses a direct threat to the health of others. Though there is no guarantee that screening does not violate workplace privacy or other laws, the ADA does not prevent an employer from:
- Asking employees whether they have experienced common symptoms of COVID-19, as determined by the CDC and other public health authorities. These symptoms include fever, cough, shortness of breath, chills, nausea, vomiting, and loss of smell or taste.
- Taking employees' temperatures regularly and storing that data (i.e., a daily log), provided the information is kept confidential.
- Testing employees for COVID-19 before allowing them to enter or return to the workplace, though the EEOC cautions that employers should review guidance from the FDA or CDC to ensure the tests administered are accurate and reliable.
In the event an employee presents with COVID-19 symptoms or tests positive for the virus, their employer should require they stay out of the workplace, as the CDC recommends. The guidance provides that the employer may require such an employee to obtain certification of their fitness for duty before returning to the workplace. However, in recognition of the current strain on doctors and other health care professionals, employers should be flexible regarding the type of certification required. The guidance suggests employers accept a form, stamp or e-mail from a local clinic to certify that an employee does not have COVID-19.
Employers may also screen job applicants (after making a conditional job offer) in the same manner they screen employees for COVID-19 infection. If an applicant presents with COVID-19 or its symptoms, an employer may delay the applicant's start date or even withdraw the job offer if the employer needs the applicant to start immediately.
Notably, an employer would violate the ADA by requiring employees to take a COVID-19 antibody test (as distinguished from a test for the COVID-19 virus itself) before returning to work, according to the EEOC's guidance. The EEOC based this determination on guidance from the CDC that antibody testing should not be used to make decisions about returning employees to the workplace due to lack of data on COVID-19 antibodies and an evolving understanding of the test's limitations. However, should CDC guidance on antibody tests change, the EEOC's guidance may also change.
Addressing at-risk employees and reasonable accommodations
The EEOC's guidance in Section D makes clear that an employee may request a reasonable accommodation from their employer if they have an existing ADA-qualifying disability that puts them at greater risk from COVID-19. The guidance also appears to expand the ADA's protections to include employees with a medical condition the CDC has identified as increasing or potentially increasing an individual's risk from COVID-19, such as obesity (body mass index of 30% or higher), hypertension, or serious heart or chronic lung conditions, even if an employee does not have a "disability" as defined by the ADA.
Notably, in addition to identifying medical conditions that may place individuals at increased risk for COVID-19, the CDC has also identified pregnant women as potentially facing higher risk and determined that risk from COVID-19 increases as individuals age. EEOC guidance indicates that the ADA does not require employers to provide employees with COVID-19-related reasonable accommodations based solely on an employee's advanced age or pregnancy status (though pregnancy related medical conditions may entitle an employee to a reasonable accommodation). However, employers should consider that denying reasonable accommodations to such employees may implicate state laws regarding discrimination and retaliation.
After receiving an employee's request for an ADA accommodation, the employer should engage in the interactive process by asking questions or requesting medical documentation to help decide if the individual has a disability (if not already known) or CDC-designated medical condition and if the employer can provide a reasonable accommodation.
Reasonable accommodations may include simple physical solutions, like installing plexiglass or other barriers, increasing the distance between an employee's workspace and that of their colleagues or providing additional personal protective equipment. However, the guidance makes clear that absent one of these simple solutions, employers must consider telework options, paid or unpaid leave, or a job reassignment as potential reasonable accommodations.
As always, the ADA permits an employer to reject proposed accommodations that would create an "undue hardship" (i.e., significant expense or difficulty). Recognizing that many employers are going through tough financial times as a result of the pandemic, the guidance acknowledges that an accommodation that would have been (or already was) deemed reasonable pre-pandemic may now constitute an undue hardship.
Regardless of whether an employee requests an accommodation for a CDC-designated medical condition, an employer may not bar the employee from the workplace solely because of that condition, unless the condition poses a "direct threat" to the employee's health that cannot be eliminated or reduced by a reasonable accommodation, absent undue hardship. The guidance makes clear that the direct threat standard is a high bar, requiring "significant risk of substantial harm" to the employee's own health. To determine whether an employee's condition presents a direct threat, the employer must perform an individualized assessment of the employee's condition, taking into account:
- Particular job duties.
- Duration of the risk.
- Nature and severity of potential harm.
- Likelihood of workplace exposure.
- Potential ways to mitigate the exposure risk.
- Other environmental factors.
Even if an employer determines that an employee's existing disability or CDC-designated medical condition poses a direct threat to his or her own health, the employer still cannot bar the employee from the workplace, or take any other adverse action, unless there is no way to provide a reasonable accommodation without undue hardship.
The guidance recognizes that guidelines and advice from public health authorities are likely to change as the COVID-19 pandemic evolves and more is learned about the virus. Therefore, employers should continue to follow the most current information on maintaining workplace safety.