EEOC Declares COVID-19 a Pandemic. What does that mean for employees?

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The U.S. Equal Employment Opportunity Commission issued a new guidance document, clarifying the interaction of the Americans with Disabilities Act (ADA) and pandemic planning in the workplace. This is a helpful resource for employees as the novel coronavirus pandemic continues to evolve in the United States. Employees are facing an almost constantly changing landscape in the workplace and they may have questions about their rights within the ADA and their understanding of their employers’ pandemic response plans.

Here’s a breakdown of what the EEOC guidance document on the coronavirus pandemic entails:

On March 11, 2020, the World Health Organization (WHO) declared COVID-19 to be a pandemic. WHO is a recognized authority to make the declaration. COVID-19 is currently defined as increased and sustained transmission in general population or worldwide. It is important to understand that the declaration of a worldwide pandemic changes how an employers’ pandemic responses may be viewed according to the ADA.

ADA Protections

The ADA provides protection for employees from disability discrimination. There are three major ways that the ADA is relevant to employers’ pandemic preparations:

  • First, employees are protected under the ADA by regulating employers’ disability-related inquiries and medical examinations for all job applicants and employees, even if they do not have an ADA disability.
  • Second, employers are prevented from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat”. Employers are required to provide a “reasonable accommodation” for individuals with disabilities unless there is a significant risk of substantial harm.
  • Third, employers must provide reasonable accommodation for individuals with disabilities (unless there is undue hardship on the employer) during a pandemic.

An employer is prohibited from making “disability-related inquiries” of employees or require medical examinations. It is a “disability-related inquiry” if an employee is asked about a disability. For example, an employee does not have to disclose if they have a compromised immune system that makes them susceptible to a virus. However, an employee may be asked if they have cold or flu symptoms, which is not information about a disability. A medical examination is defined as a “procedure or test that seeks information about an individual’s physical or mental impairments or health”.

There are several points in the employment process that may involve a disability-related inquiry and/or a medical examination defined by the ADA. An employer is prohibited from making a disability-related inquiry and a medical examination before offering an employee a job. If a job offer has been made but before the employee has begun work, an employer may make a disability-related inquiry and a medical examination only if every potential employee in the same job category is also required to complete the same inquiry/exam.

During employment, an employer is prohibited from a disability-related inquiry and a medical examination unless they are job-related and consistent with business necessity. An employer must have 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.

Determining whether an employee poses a direct threat is of primary importance during a pandemic. An employer must base their assessment on objective, factual information and not on “subjective perceptions or irrational fears” about a certain disability. An employer is encouraged to use the assessment by the Centers for Disease Control (CDC) or public health authorities as objective evidence in making a disability-related inquiry or medical examination.

The ADA requires an employer to provide a reasonable accommodation for known limitations of job applicants and employees with disabilities unless it causes an undue hardship on the employer. A reasonable accommodation is a work environment change to allow an employee with a disability to apply for, perform or enjoy equal benefits and privileges of employment. An employer might claim an accommodation poses an undue hardship if it causes significant difficulty or expense after accounting for the nature and cost, resources available and business operation impact.

During the COVID-19 Pandemic

There is a possibility of serious illness requiring quarantine and death from the COVID-19 pandemic that enables employers to take proactive measures with their employees. The CDC states that employees should be sent home by their employers if they experience symptoms associated with COVID-19. The ADA allows an employer to ask an employee who reports feeling sick about COVID-19 associated symptoms because it poses a direct threat. Note that the employer is required to maintain all information obtained from the employee to be kept as a separate, confidential medical record. An employee may be asked about potential exposure to the virus if they have travelled to specific hot spot locations.

Employees who are not experiencing COVID-19 symptoms are not required to disclose if they have a medical condition that has been identified by the CDC as vulnerable to the COVID-19 virus. Although, if an employee chooses to voluntarily disclose this information, the employer must keep the information confidential and work with the employee to identify the type of assistance needed. Due to the declaration of a pandemic, employers may now make disability-related inquiries or require medical examinations of employees even though they are not experiencing symptoms. Employers may even be allowed to take an employee’s body temperature.

Employees who are not experiencing COVID-19 symptoms are not required to disclose if they have a medical condition that has been identified by the CDC as vulnerable to the COVID-19 virus. Although, if an employee chooses to voluntarily disclose this information, the employer must keep the information confidential and work with the employee to identify the type of assistance needed. Due to the declaration of a pandemic, employers may now make disability-related inquiries or require medical examinations of employees even though they are not experiencing symptoms. Employers may even be allowed to take an employee’s body temperature.

While some of these measures may appear drastic, employers must still abide by the intent of the ADA during a pandemic. Employees have the right to request and utilize opportunities for reasonable accommodations, require that their medical information remains confidential and confirm protocols with their employer to safeguard their working environment in preventing exposure. The COVID-19 pandemic is new territory in the workplace but this Guidance Document provides consistent rules for every employee.