COVID-19 and the Intersection with the Americans with Disabilities Act: Guidance for Employers

With numerous cities and states mandating infection control practices like social distancing, wearing of masks, and sanitizing workplace services and tools, many business owners have questions as to how guidance to slow the spread of COVID-19 interacts with the Americans with Disabilities Act (“ADA”). For example, may an employer enforce a mask mandate where an employee presents a doctor’s note excusing the wearing of a mask because of breathing difficulties? What if an employer is aware that an individual presents a higher risk for severe illness because of an underlying health condition, but that employee has not yet requested an accommodation? The United States Equal Employment Opportunity Commission (“EEOC”) has published recent guidance relating to these requests. Set forth below is a summary of that guidance, as well as practical advice for employers. Please note that this article does not constitute legal advice and should not be relied upon as such. All specific inquiries should be directed to legal counsel.

Scenario 1: An employee calls in sick indicating that she is short of breath. How much additional information may you request to protect your workforce?

Answer/Considerations: The EEOC guidance on the topic indicates, “[D]uring the pandemic, ADA covered employers may ask the employee if he or she is experiencing symptoms of the virus.” Symptoms regarding COVID-19 are published on the CDC’s website as well as state and local public health agencies. Employers may wish to consider directing employees to self-quarantine if they are experiencing symptoms. Finally, keep in mind all information relating to the employee’s health condition must be maintained as a confidential medical record.

Scenario 2: An employee refuses to wear a mask and produces a doctor’s excuse citing breathing difficulties, must the employer accommodate such request?

Answer/Considerations: Possibly yes. The request to not wear a mask is considered an accommodation under the Americans with Disabilities Act. Therefore, the employer may still mandate a doctor’s note for the requested accommodation. Moreover, the employer and employee should engage in the interactive process regarding the proposed accommodation (i.e. the non-wearing of masks) and should consider the following factors in determining if the accommodation is necessary: 1) how the stated disability limits the wearing of a mask; 2) how the requested accommodation will address the limitation; 3) whether another form of accommodation could address the issue and 4) how the proposed accommodation will enable the employee to continue performing the essential functions of his or her position. Finally, the employer may still decline to provide the requested accommodation where such request would pose an undue hardship on the operation of the employer’s business under the ADA.

In administering workplace restrictions imposed by the COVID-19 pandemic, employers should also take care not to engage in disparate treatment based upon protective classes for members of the workforce.

Scenario 3: You are aware an employee is at a higher risk for severe illness if they contract COVID-19, but the employee has not requested an accommodation. Are you under a duty to engage in the interactive process?

Answer/Considerations: If the employer is concerned about the employee’s health, the ADA does not allow the employer to take any adverse action simply because the employer is aware that the employee is at a higher risk for severe illness. Similarly, if the employee does not request an accommodation, the ADA does not require that the employer act. Employers should consider that a request for an accommodation may be made informally. The one exception is where the employer can show that such an activity is a direct threat to the health of the employee. A direct threat defense requires the employer to show that the employee returning poses a “significant risk of substantial harm” to the employee. Please note an employer cannot exclude the employee from the workplace based upon a direct threat defense unless there is no way to provide a reasonable accommodation.

Employers should be mindful that guidance from public health officials is ever evolving during the pandemic and should continue to monitor guidance from public health offices in order to maintain workplace safety. For more information, please visit the EEOC.gov.