Labor & Employment Corner
COVID-19 and the ADA: Pandemic Protections for Employees and Strategies for Employers Under Federal Law By Kayla Robinson
Kayla Robinson is an associate in the Labor and Employment practice group at Polsinelli, PC in Washington, D.C. She assists employers in all aspects of employment law and litigation and helps employers implement preventative practices by drafting and reviewing employment policies. She also advises employers on how to stay in compliance with constantly changing local, state, and federal laws. ©2021 Kayla Robinson. All rights reserved.
The COVID-19 pandemic has introduced several new workplace challenges, including the evolving landscape of COVID-19’s effect on an employer’s responsibilities under the Americans with Disabilities Act (ADA). Notably, as discussed in more detail below, the Equal Employment Opportunity Commission (EEOC) has recently determined that COVID-19 may qualify as an “actual disability” under the ADA, which triggers several obligations for employers. For example, if an employee with COVID-19 is considered to have an “actual disability,” employers are required to provide reasonable accommodations to the employee upon request unless doing so would cause an undue hardship. This and other ADA protections apply to employees throughout the course of their employment, and job applicants are also entitled to protection under the ADA. Therefore, in light of the extensive scope of the ADA’s protections, it is imperative that employers keep in mind the specific nuances of COVID-19’s coverage as a disability under the ADA and develop strategies to reduce their liability under the law.
The Americans With Disabilities Act The ADA prohibits discrimination against individuals with disabilities by private employers, among other protections.1 With respect to private employers, individuals are protected from discrimination in hiring, employees are entitled to reasonable accommodation(s) for their disability at their request, and employers are prohibited from taking “adverse actions” against employees solely on the basis of their disability.2 Adverse actions include (1) failing to hire an applicant because of their disability; (2) failing to promote an employee because of their disability; (3) failing to provide a disabled employee with a requested accommodation; (4) use of an employment standard that has the effect of discriminating against individuals with disabilities and (5) terminating an employee because of their disability.3 The ADA is enforced by the EEOC and federal courts. 14 • THE FEDERAL LAWYER • January/February 2022
How COVID-19 Is Protected Under the ADA Hiring At the hiring stage, the ADA generally prohibits any disability-related inquiries or medical exams to help prevent discrimination.4 Employers are able to screen applicants for symptoms of COVID-19 and take an applicant’s temperature, but only after a conditional offer of employment has been made.5 Additionally, an employer may not postpone a start date or withdraw a job offer simply because the prospective employee is at a higher risk for contracting COVID-19 (e.g., the individual is pregnant or over 65 years of age).6 Conversely, however, an employer may also be able to rescind a job offer to an employee if there is a requirement that the employee start immediately and the individual has COVID-19 or symptoms of COVID-19 and cannot safely be in the workplace.7
Medical Inquiries Unlike other disabilities protected by the ADA, employers have more flexibility with respect to medical inquiries about an employee’s COVID-19 status. For example, an employer may request an employee who is out sick to confirm whether they are experiencing symptoms of COVID-19 in order to protect other employees.8 Further, employers may also require an individual employee to take a COVID-19 screening or test, particularly if the employer is requiring the screening and/or test in accordance with Centers for Disease Control and Prevention (CDC) guidance.9 However, as discussed below, results received from that screening or test must be maintained in a confidential medical file. There is a limit to this flexibility, however, as employers are not permitted to inquire about the COVID-19 status of an employee’s family member.10 Employers can, however, ask their employees whether they have had contact with anyone diagnosed with COVID-19 or who has experienced symptoms of COVID-19.11
