What You Should Know About COVID-19 and The Americans with Disabilities Act, The Rehabilitation Act, and Other Discrimination Laws

What You Should Know About COVID-19 and The Americans with Disabilities Act, The Rehabilitation Act, and Other Discrimination Laws

As governmental guidelines are lifted and workers begin to return to work, employees should be aware of new workplace guidelines and potential employment discrimination issues. The Equal Employment Opportunity Commission (EEOC) has released new regulations to help both employers and employees navigate the COVID-19 pandemic in the workplace. The full report can be found here.

These guidelines emphasize that while employees can receive accommodations for having a CDC-listed underlying medical condition or being within a “high-risk” age group, employers do not have the right to discriminate against employees on these grounds.

Guidelines for Returning to Work

The workplace may look a bit different upon return with the new EEOC guidelines as a response to the ongoing health crisis. Employers may now require:

  • Employee Screening: Employers may require CDC suggested COVID-19 screening procedures which may include temperature checks, inquiries to symptoms, and self-reporting for all those who enter the workplace. If symptoms of COVID-19 are present, employers may require employees to stay home.
  • Doctors’ Notes: Upon returning to the workplace, employees may be required to produce a doctor’s note certifying fitness for duty.
  • Protective Gear: Employers may require employees to wear protective gear such as face masks and gloves.
  • Infection Control Practices: Employers may now require employees to observe infection control practices such as regular hand washing and social distancing protocols.

Employers are required to offer alternative accommodations to employee screening or protective gear if it interferes with an employee’s rights under the ADA or Title VII. Such accommodations may include modified face masks for interpreters or others who communicate with an employee who uses lip-reading or modified protective gear that will not hinder religious garb.

For such accommodations to be granted, the employer must be informed of the need and the accommodation must be a reasonable alternative that does not place an undue hardship on the employer’s business as established by the ADA and Title VII. In light of the pandemic, more accommodations may be viewed as an undue hardship, otherwise known as a “significant difficulty or expense,” due to delivery delays or the business’ financial standing as a result of the recession.

“Higher Risk” Employees & COVID-19

Employees with COVID-19 related and CDC-listed high-risk medical conditions or those within a high-risk age category are offered additional accommodations under the new EEOC guidelines. The employee’s concerns must first be communicated to the employer. If it is not obvious, or not already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation. Employers may then provide:

  • Flexible Work Arrangements: Employers are required to make information available in advance to all employees who wish to request accommodations for their return to the workplace. Such an accommodation may include a temporary modification of their work schedule to decrease the employee’s contact with coworkers or the public.
  • Alternative Methods for Screening: Employers may also review requests for an alternative method of COVID-19 screening for medical conditions as any other request for accommodations under the ADA, Rehabilitation Act, or Title VII. Such reasonable requests should be granted absent any undue hardship.

It is important to note that employers are unable to terminate a high-risk employee solely on those grounds, even if the employer acted with good intentions to protect the high-risk employee from contracting COVID-19. Under the ADA, terminating an employee solely on these grounds is only permissible if the employee’s disability poses a “direct threat” to their health that is unable to be eliminated with accommodations. A “direct threat” requires an employee to be posing a significant risk of substantial harm to their own health—setting a high standard for employers to meet.

Other Potential Discrimination Concerns

Employers are still under the obligation to review any allegations of harassment or discrimination in the workplace and take appropriate action. Employers should be explicitly communicating to their employees that such behavior is not allowed in the workplace. During this time, employers should be alert to discrimination directed towards employees who are, or are perceived to be, Chinese or Asian national origin, particularly about the coronavirus or its origins. Age discrimination is another rising area of employment discrimination related to the COVID-19 outbreak.

  • Age-Related Discriminatory Practices:

The latest round of EEOC updates cited above specifically identifies age discrimination as a cause for concern given the current state of affairs with the COVID-19 pandemic. The agency acknowledged that public health authorities have identified those age 65 and over as being at higher risk for a severe case of COVID-19 if they contract the virus. However, because the Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against those 40 and older, the law prohibits employers from involuntarily excluding an individual from the workplace based on their being 65 or older – “even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.”

The EEOC also discussed the concept of providing flexibility to older workers and the legal considerations to keep in mind. Unlike the Americans with Disabilities Act (ADA), the ADEA doesn’t include a right to reasonable accommodation for older workers due to age. However, the guidance notes that employers are free under federal law to provide flexibility to workers age 65 and older even if it results in younger workers ages 40 to 64 being treated less favorably based on age in comparison. Further, the EEOC notes that workers age 65 and older also may have medical conditions that would separately bring them under the protection of the ADA. If this is the case, employees may request that their employers provide them reasonable accommodations for their disability as opposed to their age, and upon that request employers are required to engage in the interactive process with the employees as is required by the ADA.

Obstacles to Overcome with Hiring and Onboarding

During this unprecedented time, employers have new obstacles to overcome in their hiring and onboarding practices. Under the new guidelines, employers can require:

  • Applicant Screening: If the employer has made a conditional offer, they can screen applicants for symptoms of COVID-19 on the condition that the employer is screening all entering employees of the same type.
  • Delay A Start Date: Employers may delay the start date of an applicant who has COVID-19 or symptoms associated with the virus.
  • Withdraw An Offer: Employers may withdraw a job offer when the employer needs the applicant to start immediately and the employee is unable to do so as a result of COVID-19.

If you feel as though your employer has violated any of these guidelines during the current health crisis, it is important to discuss your matter with an experienced attorney. Please contact Charles W. Miller & Associates at (502) 273-0234 for a free consultation regarding your case.

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