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EEOC Issues Further Guidance For COVID-19 And The ADA In The Workplace

EEOC Issues Further Guidance for COVID-19 and the ADA in the Workplace

This information has been updated as of May 7, 2020.  

The Americans with Disabilities Act (ADA) protects workers with a disability from discrimination and provides reasonable accommodations unless doing so would impose an undue hardship on the employer. Note that some pregnancy-related disabilities may qualify for coverage under the Americans with Disabilities Act Amendments Act (ADAAA).

Although the COVID-19 coronavirus has been designated as a pandemic by the World Health Organization, you still have rights under the ADA. The EEOC has provided guidance, What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (which includes updates to the publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act), consistent with these workplace protections and rules. This publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act (which applies to federal employees) principles to answer questions frequently asked about the workplace during a pandemic. Some important takeaways include: 

During a pandemic, if you report feeling ill at work or call in sick, your ADA-covered employer may ask you questions about your symptoms to determine if you have or may have COVID-19.

  • Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat. Regardless of whether the symptoms are pandemic-related, your employer must maintain all information about your illness as a confidential medical record in compliance with the ADA.

During a pandemic, if you do not have influenza symptoms your ADA-covered employer may not ask you to disclose whether you have a medical condition that the CDC says could make them especially vulnerable to influenza complications. 

  • For example, if your ADA-covered employer questions you about flu symptoms, then that is likely not to elicit information about a disability. On the other hand, if your employer asks you if your immune system is compromised, then that would be a disability-related inquiry.
  • If you voluntarily disclose (without a disability-related inquiry) that you have a specific medical condition or disability that puts you at increased risk of influenza complications, your employer must keep this information confidential. Your employer may ask you to describe the type of assistance you think will be needed (e.g. telework or leave for a medical appointment). An employer may not assume that all disabilities increase the risk of influenza complications. Many disabilities may not increase this risk (e.g. vision or mobility disabilities).

Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.

  • Your employer may encourage you to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic. In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.
  • You need to request a reasonable accommodation from your employer if you have one of the medical conditions that CDC says may put you at higher risk for severe illness from COVID-19. For example, you or your doctor must let your employer know that you need a change for a reason related to a medical condition (here, the underlying condition). This can be in conversation or in writing. You do not need to explicitly use the term “reasonable accommodation” or reference the ADA, but it may be helpful for you to do so.
  • After receiving a request, your employer may ask questions or seek medical documentation to help decide if you have a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.

During a pandemic, your employer must continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship.

  • For example, if an employee with a disability needs the same reasonable accommodation at a telework site that he or she had at the workplace, the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should work together to identify an alternative reasonable accommodation. There may be an increase in requests for reasonable accommodations which may result in a delay of discussing those requests and providing accommodations. Solutions should be used to enable employees to keep working as much as possible.

Some examples of accommodation that, absent undue hardship, may be requested are: 

  • Additional or enhanced protective personal equipment or enhanced protective measures;
  • Elimination or substitution of non-essential job functions that are less critical;
  • Temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work; or
  • The Job Accommodation Network (www.askjan.org) also may be helpful to assist in helping you identify possible accommodations

These are just a few examples of reasonable accommodations. Depending on your job duties and circumstances, you may be able to be creative and flexible in developing accommodations with your employer. 

Guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, we will continue to follow the most current information on maintaining workplace safety. 

For more information about ongoing legislative action in response to COVID-19, existing federal, state, and local paid leave rights, and model bills, visit https://www.abetterbalance.org/get-help/

For more know-your-rights information state-by-state, visit here

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