New Guidance Regarding COVID-19 and the ADA

Which ADA Rights Apply During a Pandemic?

In earlier articles, we discussed how the Americans with Disabilities Act (ADA) applied to workers’ rights during the COVID-19 epidemic—especially the “reasonable accommodations” requirement for workers considered at high risk.

At the time, the picture wasn’t clear—and the best we could do was provide an educated guess. But recently, the EEOC released updated guidelines on the ADA’s provisions—specifically as they relate to the COVID-19 pandemic.

The guidance is written more toward employers than employees, and was originally developed in 2009 to address employment questions that arose during an earlier influenza pandemic. It’s been updated to reflect current events.

Here’s what we know based on these new guidelines.

The ADA’s role during a pandemic

According to the guidance, the ADA should do three things in the midst of a pandemic:

1. Regulate what questions employers can ask about applicants’ and employees’ health conditions, and prevent them from making hiring decisions based on those conditions.
2. Prohibit employers from keeping employees with disabilities from the workplace unless they are at risk of serious harm or present a direct threat to others.
3. Require employers to provide reasonable accommodations for those with disabilities as long as it doesn’t constitute an undue hardship for the employer.

One key component of the ADA’s regulations is the concept of “direct threat.” A direct threat is something that presents a major risk of serious harm to the individual with disabilities or others in the workplace—something that can’t be controlled or eliminated by providing a reasonable accommodation.

Coronavirus has been upgraded to “direct threat” status

The guidance states that the coronavirus pandemic does presently meet the standard of a “direct threat,” and having an employee with COVID-19 in the workplace presents a risk of serious harm to other employees.

This changes the equation when it comes to certain worker protections under the ADA. For instance, unlike previously:

• Employers are allowed to send you home if you exhibit COVID-19 symptoms.
• If you call in sick, your employer can ask about your symptoms to determine if you’ve contracted COVID-19.
• Your employer can take your temperature to determine if you have COVID-19, but has to keep the results confidential under ADA requirements.
• Employers can screen job applicants for symptoms of COVID-19, as long as they do this for everyone being hired for the same type of job.
• If you apply for a job and are found to be infected with COVID-19 as part of a pre-screening process, an employer can delay or rescind your job offer.

However, the ADA does require employees to continue protecting certain rights even in the midst of a pandemic. For instance:

• If you don’t already have symptoms, your employer is not allowed to ask you to disclose whether you have a medical condition that makes you especially vulnerable to COVID-19.
• Employees with underlying conditions that make them especially vulnerable to COVID-19 can ask for reasonable accommodations, such as telework or PPE. Employers should fulfill those requests as long as it isn’t an undue hardship.
• During the COVID-19 pandemic, employers must continue to provide non-COVID-related reasonable accommodations to all employees who qualify, as long as it doesn’t constitute an undue hardship.

However, the ADA guidance acknowledges that in these extraordinary times, employers may see a deluge of reasonable accommodation requests—and there may be unavoidable delays in satisfying all of them.

The full guidance can be found here. This document does provide some much-needed clarity, but it still leaves some questions unanswered—and it’s still not clear how post-COVID-19 employment lawsuits will play out in court.

For an answer to that question, only time will tell.

Questions about your ADA rights? Ask a Pennsylvania employment lawyer.

Not sure whether or how the coronavirus epidemic will impact your rights under the ADA? A knowledgeable Philadelphia employment lawyer can help.

An experienced employment attorney can review your specific situation, advise you on your rights, and help ensure those rights are honored—even in the midst of a pandemic.

Call us at 267-273-1054 or email us at murphy@phillyemploymentlawyer.com for a free, confidential consultation today.

The information provided here does not constitute legal advice. It is intended for general purposes only. If you have questions about a specific legal issue, you should speak to an attorney.