COVID-19 and the ADA

The Americans with Disabilities Act (ADA) is another federal law that employers with more than 15 employees need to be considering during this time. Generally, the ADA prohibits medical examinations and inquiries under typical or standard conditions. Those general guidelines give way during a pandemic when the safety of all employees may be at issue.

Permitted inquiries during pandemic

Under pandemic conditions, an employer is permitted to inquire into an employee’s health if he or she is experiencing flu-like symptoms (for example, fever or respiratory difficulties). Other, more pointed questions about disabilities or underlying risk factors or taking employees’ temperatures may be permitted if the pandemic reaches the level of becoming a “direct threat” to other employees. Although we have likely reached a “direct threat” level with COVID-19, for most employers, a more conservative approach is to only inquire about an employee’s symptoms and require any sick employees to stay home until they can provide a clear medical certification before returning to work.

If employee needs a reasonable accommodation . . .

If employers learn that an employee needs a reasonable accommodation (like telework or time off) due to a disability, the employer is obligated to engage in a dialogue (known as the “interactive process”) no differently than a request made during another time. For example, if an employee with a compromised immune system would be at a higher risk of fatality if he or she contracted COVID-19, the employer is under an obligation to determine whether providing that employee with teleworking opportunities, time off, or something else would be a reasonable accommodation.

Time off may be a reasonable accommodation

The most important thing is to communicate with the employee (preferably in writing) to determine what the concerns are and what the employee is requesting. The employer then needs to determine what accommodations will allow the employee to continue performing the essential functions of his or her job. With the passage of the Families First Act, eligible employers should consider time off as a reasonable accommodation.

Keep medical information confidential

As always, any medical information the employer gets from employees must be kept confidential and maintained separately from each employee’s regular personnel file.

See pandemic guidance from the Equal Employment Opportunity Commission (EEOC).

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

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