Employers all over the country are responding to the COVID-19, or coronavirus, situation in unprecedented ways in an effort to be part of the solution to reduce the spread of the virus. This public health situation is growing rapidly and we are all becoming increasingly aware of its impact on the workplace. Many workplace situations are unique, but the JAN organization is receiving a number of inquiries with common threads. JAN offers Americans with Disabilities Act (ADA) compliance assistance and practical strategies for accommodating individuals with disabilities during this pandemic public health situation. JAN does not provide public health or legal advice related to workplace issues.
In response to current events, the following questions address only a few ADA and accommodation issues for which employers may need guidance. JAN will provide additional information on these and other relevant coronavirus workplace issues as this public health situation develops.
Must employers provide reasonable accommodations under the ADA in response to the pandemic coronavirus situation?
Yes. JAN is hearing from many employers who are inquiring about their responsibilities under the ADA to accommodate employees who have concerns about exposure to the coronavirus. Generally, these questions have centered around individuals who may be at higher risk for developing complications associated with the coronavirus. According to the Centers for Disease Control and Prevention (CDC), this includes older adults and individuals who have serious chronic medical conditions, like heart disease, diabetes, lung disease, and compromised immunity. This means that when an employer receives a request for accommodation to reduce the risk of exposure to the coronavirus, an employer must consider this request under the ADA and engage in the interactive process to provide reasonable accommodations, barring undue hardship.
To illustrate this further, consider the following scenario: Parker has cardiovascular disease and diabetes. He works in a highly populated, open workspace and has requested that he be permitted to work at home during this public health situation, due to the risk of exposure to co-workers and the public who may exhibit symptoms of the coronavirus, or who are carriers of the disease. This is a request for accommodation under the ADA and the employer should engage in the interactive process.
Employers managing the impact of the current coronavirus pandemic on the workplace may be overwhelmed with information right now. The Equal Employment Opportunity Commission (EEOC) guidance on Pandemic Preparedness in the Workplace and the ADA is a useful guide for employers who have ADA compliance questions. In this guidance the EEOC notes that employees with disabilities may request reasonable accommodations in response to the risk of exposure to the coronavirus. For example, this guidance states that employees with disabilities that put them at high risk for complications may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic. See question 10. Of course, other types of accommodations may be requested for various coronavirus-related reasons, depending on the circumstances.
Who can receive reasonable accommodations under the ADA?
To be eligible to receive workplace reasonable accommodations under the federal ADA, an individual must have an “actual” or a “record of” a disability, as defined by the ADA Amendments Act. For additional information about the definition of disability, see How to Determine Whether a Person has a Disability Under the ADA. Also, there must be some connection between the impairment and specific need for accommodation. For example, the individual might have an underlying impairment and limitation that, if infected with coronavirus, would lead to serious complications. There is no comprehensive list of such impairments, but individuals with heart disease, diabetes, lung disease or asthma, a weakened immune system, kidney disease, cirrhosis, etc. are considered at higher risk for developing serious complications, according to the CDC. Coronavirus alone may not be considered a disability under the ADA, due to the illness being transitory and having limited impact on major life activities in ordinary circumstances.
People 65 years and older and women who are pregnant are also at higher risk for developing complications from coronavirus but will not qualify to receive accommodations under the ADA solely on the basis of age or ordinary pregnancy. Employers receiving accommodation requests from employees in these higher risk groups will need to consider their responsibilities under state and local requirements, the federal Pregnancy Discrimination Act (PDA), and Occupational Safety and Health Administration (OSHA) requirements. OSHA recently published Guidance on Preparing Workplaces for COVID-19 that outlines steps employers can take to protect their workforce from occupational exposure to the coronavirus.
Caregivers of individuals with disabilities are not entitled to receive workplace reasonable accommodations under the federal ADA but may be entitled to leave under the federal Family and Medical Leave Act (FMLA) or the recently passed federal Families First Coronavirus Response Act. For example, if a caregiver's child, spouse, or parent has coronavirus, it's possible that the FMLA could apply if leave is needed to care for that family member, or because the caregiver has coronavirus. For more information, see the Department of Labor, Wage and Hour Division guidance on COVID-19 or Other Public Health Emergencies and the Family and Medical Leave Act Questions and Answers.
Under the Emergency Paid Sick Leave provision of the Families First Coronavirus Response Act, a covered employer must provide paid sick leave to a qualifying employee who is unable to work or telework because:
- the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- the employee has been advised by a health-care provider to self-quarantine because of COVID-19;
- the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- the employee is caring for an individual subject to or advised to be in quarantine or isolation;
- the employee is caring for a son or daughter whose school or place of care is closed, or child-care provider is unavailable, due to COVID-19 precautions; or
- the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
For a practical summary of the key FMLA and sick leave provisions of the Families First Coronavirus Response Act, see President Trump Signs Emergency FMLA Leave and Paid Sick Leave in Wake of Coronavirus Pandemic: Here are the Details.
Keep in mind, in response to the current coronavirus pandemic, employers are making adjustments in the way many people work, including adjustments for people who have no risk of exposure due to a medical reason. Remember, employers have the discretion to make workplace modifications that will benefit employees, public health, and our country. Employers may want to discuss their non-disability related questions about making workplace modifications in response to the coronavirus with an appropriate legal professional to decide how to manage situations involving higher risk employees and caregivers of individuals with disabilities who do not fall under the ADA. We are all in this together and taking a practical approach to preventing risks of exposure, enabling employees to continue working, and meeting business needs can enable us all to do our part in the effort to “flatten the curve”.
Can disability-related documentation be required when an accommodation is requested under the ADA to reduce the risk of exposure to the coronavirus?
In response to receiving a request for an accommodation under the ADA, during ordinary times, an employer has the right to ask the employee to obtain sufficient disability-related information to establish the right to receive an accommodation, when the impairment and/or need for accommodations is not known or obvious. Given the current public health situation, these are really not ordinary times. Yes, employers do still have the right to request ADA documentation when asked to provide an accommodation, but from a practical perspective, employers may want to consider, under the current circumstances, whether this documentation is necessary. If so, employers should consider being pragmatic and flexible with regard to the information requested for ADA purposes.
Given the current overload on health-care providers and facilities in response to managing the coronavirus pandemic, individuals may not be able to access their health-care provider simply to obtain ADA documentation. Also, the risk of exposure to coronavirus from visiting a health-care provider and the requirement to practice social distancing or sheltering in place, may impede individuals from accessing an appropriate professional who can provide ADA documentation at this time.
Note that disability-related documentation is not required in order to approve an accommodation under the ADA, but employers may ask for information to establish the right to receive an accommodation. During the current pandemic coronavirus situation, employers are encouraged to consider various means for obtaining information to establish this right. The following practical suggestions may be useful:
- Ask the individual for specific information about their impairment, limitations, and need for accommodations related to the coronavirus situation (e.g., what is the underlying disability-related need for accommodations)
- Consider whether the employer already has sufficient information on file about the impairment and limitations for which an accommodation is needed (e.g., from a previous request for an accommodation for the same impairment)
- Accept information from a personal medical record from a past visit to a health-care provider that establishes the impairment
- Accept a telemedicine consult with an appropriate provider, a form or stamped note from a clinic, or an e-mail from a health-care provider that establishes the impairment and need for an accommodation
- Request authorization to communicate directly with the individual’s health-care provider for confirmation of the impairment and clarification regarding the need for an accommodation
- Approve the accommodation request without obtaining formal disability-related documentation, if the employer has good reason to believe the individual has the impairment for which they have requested an accommodation, and document that disability-related documentation will not be required at this time, given the current public health situation.
Stay tuned for more information on relevant coronavirus workplace issues. JAN offers practical information and resources to enable employers to respond to this situation in productive ways. Contact JAN for more information about ADA compliance and accommodating individuals with disabilities during this coronavirus pandemic.