The Americans with Disabilities Act and the Rehab Act During COVID-19

In response to a pandemic like the current one involving COVID-19, the Americans with Disabilities Act (ADA) and Rehabilitation Act guidelines issued by the Equal Employment Opportunity Commission (EEOC) adjust to address health and safety issues related to the pandemic. The EEOC originally addressed workplace pandemic issues under the ADA and Rehab Act during the H1N1 virus in 2009 and has now re-issued and updated its “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” publication on March 21, 2020.

As noted in the updated EEOC publication “The ADA and the Rehabilitation Act do not interfere with employers following advice from the CDC and other public health authorities on appropriate steps to take relating to the workplace.” Accordingly, readers should familiarize themselves with and continually look for updates to the CDC’s “Interim Guidance for Business and Employers to Plan and Respond to Coronavirus Disease 2019.” For example, the CDC has urged employers to implement sick leave and other supportive policies and practices that are flexible and consistent with government guidance. The CDC recommends that an employer not require a health care provider’s note for an employee to return to work after calling out sick, as is required by some employer policies. In an effort to ease the burden on small and mid-size employers related to the pandemic and to ensure public safety, Congress passed the Families First Coronavirus Response Act.

The EEOC’s publication also addresses established principles of the ADA relevant in times of a pandemic and attempts to address many issues raised by employees and employers. Importantly the EEOC states that it has determined that COVID-19 rises to the level of a “direct threat” under the ADA. “Based on guidance from the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard.” This is important because the direct threat designation allows employers to take significantly more action to protect the workplace during the pandemic, such as medical inquiries, tests, and the relaxation of return to work policies which are not allowed under the ADA outside of a pandemic.

Frequently asked questions asked by employees and employers during the COVID-19 pandemic:

Can an employer ask me if I am experiencing COVID-19 like symptoms if I report that I don’t feel well at work or call out sick?
Yes, but the employer must keep the information gathered as confidential medical information in compliance with the ADA.

Can my employer send me home for displaying COVID-19 type symptoms?
Yes, your employer has the ability during the pandemic to send you home if you have been diagnosed with COVID-19 or display any symptoms associated with it such as a cough, fever, shortness of breath, chills or sore throat.

Can my employer take my temperature at work?
Yes, your employer may take your temperature while in the workplace as long as the screening doesn’t specifically target your protected class (e.g., sex, race, national origin, age, disability, etc.). This is one of the most significant differences under the ADA. Generally, taking the temperature of an employee would be prohibited as an unlawful medical examination unless the screen was deemed to be job-related and consistent with business necessity, a high bar. It is important to note that not all people with COVID-19 experience a fever and any information gathered by the examination must be kept as confidential medical information in compliance with the ADA.

May I still request that my employer provide me a reasonable accommodation during the COVID-19 pandemic?
As before the pandemic, your employer must provide you with a reasonable accommodation as long as the accommodation does not result in an undue hardship to the employer. For example, individuals who have compromised immune systems, and therefore, are more susceptible to the flu or COVID-19 may request to telework.

May my employer require me to wear personal protective equipment and institute infection controls in the workplace?
Yes, the employer may require you to wear personal protective equipment and abide by infection controls. The employer must still provide reasonable accommodations to its employees.

May my employer terminate my employment because of COVID-19’s impact on their business?
Yes, as long as the employer is not targeting employees for termination because of the employees’ protected class i.e. race, sex, age, disability and any other protected class by local, state, and federal law, because they are a whistle blower, or may be protected by a collective barraging agreement which controls the specific situation.

May I be fired for refusing to go to work because I fear COVID-19?
In general, an employer may terminate an employee for failing to show up to work during the pandemic assuming that the local, state or federal authorities has not issued a shelter in place order that applies to the employee. An employee may be terminated in the case that a shelter in place order has been initiated and the employee has been deemed essential by the relevant authorities and the employee fails to go to work. If you are high risk for contracting COVD-19 you should confidentially talk to your employer about alternative work arrangements or if needed, a reasonable accommodation under the ADA.

If I am quarantined because of COVID-19 am I entitled to paid time off?
This is a very fact specific question that depends upon factors such as the employment status of the employee (at-will, an individual covered by a collective bargaining agreement, or contract), the type of work (essential vs. non-essential), and the location of the employee. In general, individuals who are quarantined because of COVID-19 are not entitled to paid time off. However, you should check relevant state and local rules. For example, certain employees in Philadelphia may be eligible to use their sick leave during quarantine and must be paid out if you are laid off. Also, under the FFCRA, which becomes effective next week, certain employees will be eligible for paid time off under certain conditions. See Willig, Williams, and Davidson’s FFCRA analysis for more information.

Can my employer require me to use my accrued sick leave if I am quarantined for COVID-19?
Yes, generally your employer may require you to use your accrued paid sick leave pursuant to the employer’s normal practices and policies unless you are subject to a contract, your collective bargaining agreement that says otherwise or your employer is subject to the FFCRA. If your employer is subject to the FFCRA they must provide you with 80 hours of sick leave for qualifying reasons before requiring you to use your accrued leave.

Can my employer require me to provide a doctor’s note certifying that I am fit to return to work?
Yes, but the employer should recognize due to the pandemic the employee may not be able to get a note from their doctor and should make alternative arrangements to certify that the employee is fit for duty.