There is no denying that the COVID-19 pandemic has left large segments of the workforce caught between a rock and a hard place: they can refuse to come to work and risk losing their job, or they can continue to go to work and risk their health and, potentially, their life. This is especially true when it comes to workers with underlying health conditions, which is where the Americans with Disabilities Act (“ADA”) comes in. The ADA is a federal law that protects individuals from discrimination based on a disability. A lot of the underlying medical conditions that make a person high risk for severe illness from COVID-19 (i.e. chronic lung diseases, serious heart conditions, etc.) can also be classified as disabilities under the ADA. With this in mind, it is important to consider how the ADA can protect employees who are in this precarious position.
One of the requirements of the ADA is that an employer must provide a reasonable accommodation to an employee with a disability, so long as the accommodation would not pose an undue hardship. Some examples of common accommodations include teleworking, adjusting work schedules, modifying the physical layout of the workspace, or medical leave. However, it is important to keep in mind that an employer is not obligated to provide an accommodation where it would eliminate an essential duty of an employee’s job. In other words, if one of the essential duties of an employee’s job requires them to be physically present at work, then the employer is not obligated to allow an employee to telework as an accommodation.
For that reason, the ability to telework as an accommodation is often times not going to be practical for many workers. This is why it is critical for employees and employers to work together through the “interactive process” to determine an accommodation that would work for the duration of the pandemic. That may include medical leave, job restructuring, or even a temporary transfer to a vacant position. In the EEOC’s March 27, 2020 webinar on this precise issue, the EEOC stated that “employers and employees should try to be as flexible and creative as possible” in light of this crisis, and should consider providing “requested accommodations on a temporary basis (for example, one or two weeks) while the employer is discussing the request more fully with the employee.”
As for employees who do not have a disability under the ADA, they still may be protected under the ADA when it comes to COVID-19 and privacy. Ordinarily, the ADA prohibits an employer from making disability-related inquiries and requiring an employee to take a medical examination. However, because the EEOC (and the Center for Disease Control) has recognized that COVID-19 poses a “direct threat” to the health and safety of others in the workplace, there is an exception to this general rule. As a result, employers have free reign to take an employee’s temperature before coming in to work, to ask an employee if they are experiencing any COVID-19 related symptoms, and to bar an employee from physically coming to work if they are experiencing any symptoms. With that said, employers must tread lightly when it comes to who they discuss an employee’s medical information with—even with an employee testing positive for or showing symptoms of COVID-19. The ADA requires that employers keep all medical information about employees confidential—regardless of whether that information is related to a disability. So while employers certainly can inform the workforce that an employee has tested positive for COVID-19, an employer should refrain from disclosing the name of the employee. Of course this is trickier for small workplaces, but nevertheless, employees should be aware that the ADA confidentiality provision may protect them in this scenario.
For additional information about your rights as an employee, visit Caffarelli & Associates Ltd. or call 312-763-6880.