This blog post can also be found on our Coronavirus Resource Center.
Employers across the United States are bracing for the sudden and potentially sustained impact the novel coronavirus will have on both their employee populations and their workplaces.
To successfully navigate this unique and difficult situation, employers need to understand the risks they face: the illness itself and the Centers for Disease Control (CDC) guidance on how to respond. Beyond that, laws governing employment, such as the Americans with Disabilities Act (ADA), affect the decision-making process employers will face as they go through this unprecedented time.
In this article, I’ll discuss some ramifications for employers under the ADA as it pertains to disability discrimination and failure to accommodate claims.
How the ADA and Other Laws May Impact COVID-19 Claims
During the current coronavirus pandemic, employers may have concerns about discrimination claims brought on the basis of actual or perceived disability. Let’s take a look at that issue under the ADA.
First, a quick refresher on the ADA. The ADA applies to and covers:
- Employers with 15 or more employees
- State and local governments regardless of how many employees they have
- Employment agencies and labor organizations
- Federal employees pursuant to Section 501 of the Rehabilitation Act, as amended, and its implementing rules
The ADA protects employees with disabilities from discrimination. A disability can be a chronic physical condition, such as difficulty breathing.
While it’s difficult to predict whether a transitory event might constitute a disability under the law, let’s presume for the moment that an employee who tests positive for coronavirus might very well be considered disabled under the ADA. One can readily see how a jury might agree, given the shared experience the country is going through.
Sticking with coronavirus as the inciting disability, employees could seek and be entitled to an “accommodation,” such as leave or a remote work arrangement for a limited period.
What’s Considered a “Reasonable Accommodation”?
A “reasonable accommodation” is a change in the work environment that allows an individual with a disability to have an equal opportunity to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment.
An accommodation poses an “undue hardship” on the employer if it results in significant difficulty or expense for the employer. Determination of an undue hardship takes into account:
- The nature and cost of the accommodation
- The resources available to the employer
- The operation of the employer’s business
If a particular accommodation would result in an undue hardship, an employer is not required to provide it but still must consider other accommodations that do not pose an undue hardship.
Generally, the ADA requires employers to provide reasonable accommodations for known limitations of applicants and employees with disabilities. It’s important to note that the “undue hardship” standard is a high one. Expense alone may not be enough.
The ADA and Pandemic Prep
The ADA, which protects applicants and employees from disability discrimination, is applicable to pandemic preparation in at least three ways, according to the Equal Employment Opportunity Commission (EEOC) in its March 2020 update:
- The ADA would govern an employer’s disability-related inquiries of its employee population and required/requested medical exams for all applicants and employees, including those who do not have ADA disabilities.
- The ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk of substantial harm even with reasonable accommodation).
- The ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.
In the normal course of business, the ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances. These limited circumstances can be present if the inquiry is job-related and consistent with business necessity.
Does an Employee Pose a “Direct Threat?”
A disability-related inquiry or medical examination of an employee may be considered job-related and consistent with business necessity (or argued to be if the employer is sued) when an employer has a reasonable belief, based on objective evidence, that:
- An employee’s ability to perform essential job functions will be impaired by a medical condition; or
- An employee will pose a direct threat due to a medical condition.
According to the EEOC, and of great relevance to our current situation, a direct threat is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
If an individual with a disability poses a direct threat despite reasonable accommodation, according to the EEOC, he or she is not protected by the nondiscrimination provisions of the ADA.
Based on guidance of the CDC and public health authorities as of March 2020, as adopted by the EEOC, the COVID-19 pandemic meets the direct threat standard.
Work Leave and FMLA
Let’s take a closer look at the issue of leave accommodation, which may prove to be a dominant employment scenario employers will face as we navigate this crisis. Just as leave can be a requested accommodation under the ADA, leave is also a frequent issue under the Family and Medical Leave Act (FMLA) and its state equivalents.
Decisions around absences due to employee illness, school closures, or quarantines (based on both actual exposure and government mandate) will be necessary. In that regard, employers will want to consider state and federal leave laws, privacy issues, and their own time-off policies.
Additionally, although certain jobs may be performed remotely, others may require employees to be physically present in the workplace and, therefore, absences or closures may impact those workers’ pay and use of leave.
Employers must also consider and factor into their decisions whether leaves of absence trigger protections under the FMLA, and state or local sick leave laws or workers’ compensation laws.
For eligible employees, COVID-19 could qualify as a serious health condition allowing the affected employee to take job-protected FMLA leave if either the employee or a covered family member contracts the disease.
In addition to providing paid time off for illness, a number of state sick leave laws allow employees to use earned sick leave due to a public health emergency, or if they need to care for a child whose school or child care provider is closed.
Privacy rights can also be triggered by absences. Under many state sick leave laws, employees can’t be required to disclose their personal health information. Employers have to be careful as they navigate what they ask employees about with regard to the reasons for leave.
If employees do disclose such information, employers must use discretion to protect the employees’ confidentiality while balancing the safety of others in the workplace.
Of course, all of these laws prohibit the employer from retaliating against an employee for exercising their rights.
How Can Employers Prepare?
To assist employers, the EEOC statement confirms a number of actions employers can lawfully take to protect against the introduction or spread of COVID-19 in the workplace. According to the agency, employers can take the following actions without creating issues under the ADA or Rehabilitation Act.
- Ask employees if they are experiencing symptoms of the coronavirus––for COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat––so long as employers keep the information confidential in compliance with the ADA.
- Take employee body temperatures (although EEOC cautions that some people with COVID-19 do not have a fever).
- Require employees to stay home if they have symptoms of COVID-19.
- Require employees who are returning to work to supply doctors’ notes certifying their fitness for duty (although EEOC cautions such a requirement may not be practical, as health care providers may be too busy to supply certifications).
- Screen job applicants for symptoms of COVID-19 after making a conditional job offer, so long as the employer does so for all entering employees in the same type of job.
- Delay the start date of a job applicant who has COVID-19 or symptoms.
- Withdraw a job offer when the employer needs the applicant to start immediately, but the individual cannot safely start work due to COVID-19 symptoms.
What Might This Look Like in Practice?
By way of example, an employer could take a prospective employee’s temperature and monitor breathing/coughing (in a private, sterile space) after a conditional offer is made.
If concerning symptoms are present, the employer could delay the start date by two or three weeks and require a doctor’s note certifying good health.
Prior to the pandemic, asking an employee to disclose a compromised immune system or chronic health condition (noting that the response is very likely going to disclose the existence of a disability) would be prohibited under the ADA and its state law equivalents.
The ADA doesn’t allow that kind of inquiry without objective evidence that pandemic symptoms are present and could cause a direct threat. It’s important to note that in normal, non-pandemic times, evidence that would give an employer a reasonable basis to ask about someone’s immune system isn’t usually present.
Requiring Preventive Measures for Employees
During the pandemic, employers can require their employees to take certain precautions to keep themselves and each other safe.
The CDC recommends that employers institute and apply a COVID-19 Policy. At a minimum, they recommend that employers:
- Educate employees on the virus and transmission.
- Instruct employees in a verbal or written communication on a variety of health practices to slow or stop the spread (see CDC page for more).
- Provide employees and others entering the workplace with tissues, trash receptacles, hand sanitizer, and a place to wash their hands.
- Communicate available employee health services and encourage employees to obtain the seasonal influenza vaccine.
- Maintain and improve workplace cleaning/maintenance routines, including providing supplies to clean employee work surfaces and electronic equipment.
Evaluate existing leave of absence/sick leave policies to determine how to address the various leave scenarios that may arise.
Encourage ill employees to stay home without fear of job loss or reprisal.
Employees with disabilities might need a related reasonable accommodation under the ADA, such as non-latex gloves, or gowns designed for individuals who use wheelchairs––the employer should provide these, absent undue hardship.
The Topic of Vaccines
How about the big one: requiring employees to take a vaccine (when one becomes available) in order to be in the workplace? Employers should keep in mind that employees may be entitled to an exemption from a mandatory vaccination based on an ADA disability that prevents them from taking it.
Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents them from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.
Whether the “direct threat” standard would provide employers with the power to require vaccine usage in order to remain in the workplace, despite protected religious belief, remains to be seen.
How Would an Employment Practices Liability (EPL) Policy Respond?
The allegation of discrimination pursuant to the ADA will trigger coverage under an EPL policy, but policyholders should note that most EPL policies exclude actual or anticipated costs associated with an employer’s obligation to provide reasonable accommodation.
The allegations of discrimination pursuant to the ADA will trigger coverage under an EPL policy, but policyholders should note that most EPL policies exclude actual or anticipated costs of the accommodation itself. For example, redesign of architectural barriers, websites, or equipment to accommodate an employee’s need wouldn’t be covered or reimbursed. In our present circumstance, this would include personal protective equipment as well.
A standard EPL policy provides coverage for claims in the form of written demands for monetary damages or non-monetary relief, charges, suits, and arbitration demands, and can also include tolling requests alleging wrongful acts.
Claims that are typically covered by EPL include claims for discrimination based upon protected class (race, sex, orientation, age, disability, religion, etc.), wrongful termination, retaliation, and assorted employment torts.
Employment-related misrepresentation, interference, defamation, and emotional distress are but a few examples of employment-related tort theories plaintiffs can allege. These policies can also cover breach of employment contracts.
Those contracts may be implied to be covered. If the contract is alleged to be express (whether oral or written), the policy would defend but would not cover the contract amounts themselves. Punitive damages may also be covered as loss, where insurable. In less frequent instances, the policy may also address wage and hour exposure via a sublimit.
Additional Reference Information on Coronavirus
Suffice to say, this is a new era both in our personal lives and in the laws governing our workforce. Much will develop over time and in response to this pandemic, and we’ll be here to help you navigate those challenges.
Just as importantly, there are many people who can help with your questions, concerns, and even the stress we’re all feeling.
We at Woodruff Sawyer are here to assist you through these challenging times. Refer to our dedicated Coronavirus resource page for more insights and information, and please feel free to reach out to me.