COVID-19 and the Americans with Disabilities Act

Given the unprecedented national emergency created by the spread of the novel Coronavirus 2019 (COVID-19), protecting the health and safety of employees and our communities will be the highest priority for any business. Business leaders looking to protect the safety of workers may have questions about how the Americans with Disabilities Act (ADA) and company policies designed to comply with the ADA can be reconciled with the need to create "social distance" among employees and members of the public. The EEOC has offered unprecedented guidance based on the "Direct Threat" exception to the ADA that should help employers more easily navigate these circumstances.

Under the ADA, a covered employer's disability-related inquiries are regulated, discriminating against an employee based on medical conditions is prohibited with limited exception, and employers are required to make reasonable accommodations for employees with disabilities with limited exception. However, these provisions may not apply if an employee's condition poses a "direct threat" to the health or safety of others in the workplace. 42 U.S.C. § 12113(b). A "Direct Threat" is defined as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." The employer relying on this defense must have an objective, fact-based reasonable belief that an employee poses a direct threat to others despite reasonable accommodations.

Under ordinary circumstances, the "Direct Threat" analysis may not always give a clear answer. But these are not ordinary times and COVID-19 has resulted in a very different situation from any we have experienced in our lifetimes. The EEOC released special guidance about pandemic influenza during the 2009 H1N1 influenza outbreak that relied heavily on CDC guidance to determine whether the standard was met during a flu pandemic and has now updated that guidance to address COVID-19. EEOC's current guidance is clear:

Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard. The CDC and public health authorities have acknowledged community spread of COVID-19 in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings. In addition, numerous state and local authorities have issued closure orders for businesses, entertainment and sport ve3nues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion. These facts manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time. At such time as the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists.

See https://www.eeoc.gov/facts/pandemic_flu.html#20 (emphasis added). Employers dealing with the COVID-19 crisis should regularly check for updates at the website quoted above. The EEOC states explicitly that "[t]he new information added to this EEOC technical assistance document in 2020 about COVID-19 focuses on implementing these strategies in a manner that is consistent with the ADA and with current CDC and state/local guidance for keeping workplaces safe during the COVID-19 pandemic. This document recognizes that guidance from public health authorities will change as the COVID-19 situation evolves." (emphasis added). In other words, employers should keep up to date on CDC and public health agency guidance to make sure they are following recommended practices. Up-to-date CDC guidance can be found here.

Employers should be careful to ensure that their COVID-19 response is administered in a non-discriminatory manner. Discrimination is likely to occur if an employer deviates from the medically-based guidance provided by the CDC. For example, if an employer were to lay off or refuse to hire an employee because of a medical condition that places him or her in a high-risk category for Covid-19, the EEOC's guidance indicates that the direct threat defense would not apply. Or, if an employer were to discriminate in some way against an employee whose nationality (but not recent travel) connects him or her to a country with a significant outbreak, that may be valid grounds for a claim of race or national origin discrimination. And, as things hopefully improve soon and people begin to recover from this illness, any policies that stigmatize those who have been cleared to return to work by medical professionals may run afoul of the ADA's nondiscriminatory provisions.

A few key takeaways from the EEOC's guidance include:

• Employers can send home an employee with COVID-19 or symptoms associated with it without violating the ADA
• Employers may ask employees who feel ill or call in sick about their symptoms to determine whether they have COVID-19 and may follow CDC guidance on when they are cleared to return to work
• Employers may measure employees' body temperature, but as with all medical information, the results of such measurement (including if an employee has a fever) would be subject to ADA confidentiality requirements
• Employers may follow CDC and state/local public health authorities' guidance regarding limitations on an employee's return to work after visiting a specified region
• Employers may screen job applicants for symptoms of COVID-19 after making a conditional job offer provided the employer does this for all entering employees in the same job type; if an employee cannot safely enter the workplace, the job offer may be rescinded
• Employers may require a doctor's note certifying fitness to return to work after COVID-19 related illness or quarantine
• If non-COVID-19, reasonable accommodations become more challenging (e.g. for employees with a disability working from home); employers should address requests for reasonable accommodation as soon as possible (Note: the EEOC recognizes that reasonable accommodations may be delayed under the present circumstances but also indicates that employers and employees should find interim solutions and do their best to make accommodation as soon as possible)

Probably the biggest takeaway from the EEOC's guidance is the EEOC's heavy reliance on the CDC's guidance. Employers will be well-advised to do the same—keep up-to-date with CDC guidance on this illness. Of course, each business should consider its own unique circumstances and those of its employees when adapting to the COVID-19 situation, placing the health and safety of its workforce first in accordance with CDC recommendations. When in doubt, seek counsel to address your business's unique COVID-19 concerns.