July 26 marks the 30th anniversary of the Americans with Disabilities Act. Covid-19 may limit the number of people the ADA can have at its birthday party, but it has “gifted” the ADA with significant media attention just in time for the anniversary, with the global pandemic raising a new set of legal questions for employers to navigate.
At the time of its passage, the ADA was praised as a major step forward in the fight for equality for persons with disabilities. Thirty years later, the ADA remains an important piece of legislation in the American justice system and sets legal standards for many employers.
Here is a look at what employers will need to be prepared to handle moving forward into the ADA’s fourth decade.
Definition of ‘Disability’
An individual with a disability is defined by the ADA, as a person who:
- has a physical or mental impairment that substantially limits one or more major life activities,
- has a history or record of such an impairment, or
- is perceived by others as having such an impairment.
In response to Covid-19, employers should be prepared for an increase in disability-related questions and requests connected to coronavirus. As of the date of this publication, the Equal Employment Opportunity Commission has not clarified if a diagnosis of Covid-19 would be considered a disability under the ADA. Regardless, the ADA requires employers to assess whether a particular employee is “disabled” on an individualized basis and employers should apply such an analysis to employees with coronavirus.
Based strictly on how disability is defined under the ADA and corresponding regulations, Covid-19 may not be considered a “disability” for an employee who experiences no symptoms, or only mild, temporary symptoms because temporary, non-chronic impairments with little or no long-term impact, such as pneumonia and influenza, usually are not viewed as “disabilities.”
However, an employee who contracts Covid-19 may be entitled to protection under the ADA if the employee’s reaction to Covid-19 is severe or if it adversely impacts the employee’s other existing conditions. Moreover, new research suggests some individuals may experience unanticipated long-term complications from Covid-19. As such, it is possible an employee who initially does not exhibit symptoms may still qualify as “disabled” under the ADA if the employee later experiences complications that substantially limit a major life activity.
Further, Covid-19 may qualify as a disability under applicable state and local disability laws even if an employee is not deemed “disabled” under the ADA.
Employers may also see more disability-related inquiries connected to mental health conditions. Depression and anxiety may be expected to increase in incidence and impact as a result of the pandemic, corresponding stay-at-home orders, and the economic effects of the pandemic. Employers should remember depression, anxiety, and other mental or emotional conditions can qualify as disabilities under the ADA if such impairments “substantially limit” one or more major life activities of the individual.
The ADA requires employers to provide reasonable accommodations to qualified applicants and employees with disabilities unless the employer can demonstrate that doing so creates an undue hardship on the employer or poses a direct threat to the safety of the employee or others in the workplace.
Upon learning an employee needs a reasonable accommodation, employers are required to engage in an “interactive process” in good faith with the employee. The employer and employee should discuss the nature of the disability and the limitations that may affect the employee’s ability to perform the essential job duties in order to determine what (if any) accommodation(s) the employee may need.
Due to Covid-19, employers will likely see an increase in accommodation requests in the coming months and, potentially, years. Employers should ensure managers and human resources professionals are trained on how to properly handle accommodation requests in this regard—including on how to properly engage in the interactive process.
Although disabled employees are entitled to reasonable accommodations to perform the essential functions of the job, recent EEOC guidance makes clear that employees are not entitled to an accommodation under the ADA if the request is based solely on the employee’s concerns about the wellbeing of an at-risk family member.
An employer may choose to provide flexibility to an employee based on these considerations, but is not required to do so. Further, employers must be mindful of whether they may have other accommodation obligations based on any applicable state or local laws.
Upon reopening, employees will be returning to a substantially different work environment. Employers should remember to make all workplace changes accessible for employees with disabilities when implementing new safety measures.
New safety protocols, such as mandatory masks in the workplace, may also raise accommodation-related issues for employers. The Centers for Disease Control and Prevention has repeatedly stated wearing a face mask is one important way to slow the spread of Covid-19. However, wearing a face mask may be difficult for some people with certain disabilities, such as respiratory disorders.
If an employee with a disability is unable to wear a face mask, the employer should engage in the interactive process with the employee and attempt to find an alternative that allows the employee to perform the essential functions of the job and still provides protections for the entire workforce.
The EEOC has provided guidance on what Covid-19-related questions and tests are appropriate under the ADA. At this time, EEOC guidance provides employers may ask employees if they are experiencing symptoms of Covid-19 and choose to administer Covid-19 testing to employees before they enter the workplace because an individual with the virus could pose a direct threat to the health of others.
However, the EEOC has also stated that employers may not require employees to undergo Covid-19 serological (antibody) testing as such testing constitutes a medical examination under the ADA and does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries.
Employers should remember that the ADA also requires employee medical records to be treated confidentially and kept separate from other employment files.
The ADA also protects qualified disabled employees from discrimination by prohibiting differential treatment of disabled employees. As such, even if an employer knows an employee has a disability that puts him/her/them at higher risk of developing serious complications from Covid-19, the employer may not make assumptions about the employee’s ability to come into the office.
Thus, for example, an employer may not tell an employee who has as respiratory condition that he is not permitted to return to the office.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Emily M. Wajert is an attorney in the employment law practice at Kramer Levin in New York. She represents employers in a variety of employment-related claims and disputes, including discrimination, retaliation, wrongful discharge, whistleblower, restrictive covenants, and bonus claims.