No doubt many businesses employ individuals who have disabilities that increase their risks arising from contracting COVID-19. Some of these risk factors include chronic lung disorders such as asthma and COPD, autoimmune disorders, diabetes and hypertension. Prior to the COVID-19 outbreak, these individuals may not have requested or needed any type of accommodation in the workplace, and in fact, they may not even have revealed to their employers that they had a disability. Must an employer make reasonable accommodations to these employees that are designed to address their increased risks arising from contracting COVID-19? In a nutshell, the answer is yes – as long as what is being requested is a reasonable accommodation that would allow the employee to continue to perform their essential job functions without causing the employer undue hardship.
The Equal Employment Opportunity Commission (EEOC) notes that during a pandemic, “The ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC about steps employers should take regarding the Coronavirus.” During the HINI Swine Flu outbreak in 2009, the EEOC issued guidance entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” This guidance is still in effect and would apply equally to the current situation. It is a reminder that anti-discrimination laws do not disappear when a crisis hits.
What questions may an employer ask to ascertain whether an employee may have COVID-19?
First, it is clear that an employer may require an employee who is showing symptoms of the illness to leave the workplace and not return until s/he is cleared of the disease. An employer may ask employees who appear ill about the symptoms they are experiencing in order to ascertain the likelihood that an employee has contracted COVID-19. This information would be considered medical information and per the EEOC, this information, like any other medical information an employer learns about an employee, must be kept confidential. As discussed in more detail by P&C Attorney Robert Hinton in a recent blog article, taking an employee’s temperature is considered a medical examination that can only be performed if it is job related and consistent with business necessity, but if a pandemic disease with fever as a common symptom is widespread in the community (as determined by local health authorities and the CDC), that standard may be satisfied.
Must an employer accommodate an employee who is at higher risk because of a disability?
To the extent possible, employers should provide reasonable accommodations to an employee who, because of a disability, is at higher risk for medical complications from contracting COVID-19. These might take the form of excusing the employee from attending in-person meetings, or allowing the employee to telecommute. As with any other accommodation under the ADA, the accommodation must be reasonable and must allow the employee to perform the essential functions of the job. Additionally, if an employee needs the same accommodations while telecommuting that s/he needs while in the workplace, these must be provided unless it would cause an undue hardship to the employer. Thus, for example, an employee who has a vision issue and needs a screen-reader for their office computer must also be provided a screen reader to use at home if telecommuting.
May an employer require a doctor’s note prior to allowing an employee back to work after testing positive for COVID-19?
In a word, “yes.”
Additionally, an employer may always require its employees to follow proper infection-control practices such as frequent handwashing. An employer would be able to take disciplinary action against an employee who refuses to follow mandated safety procedures in the workplace.
