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.

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

The ADA requires that employers maintain medical information provided to them as confidential medical records separate from the employee’s personnel file.12 In light of the COVID-19 pandemic, employers are handling more medical information than they likely have before, including results from COVID-19 tests that employees take on a frequent basis. Therefore, it is imperative that employers familiarize themselves with the ADA’s requirements and set internal controls to ensure that the ADA’s requirements are implemented. In addition to these confidentiality concerns, employers also have to balance their need to report cases of COVID-19 in their workplace in order to ensure the safety of their other workers.

The EEOC advises that when determining how to balance an employee’s confidentiality under the ADA with the employer’s need to report a positive COVID-19 case to ensure the safety of its workforce, that the employer keep all of the employee’s COVID-19 information (e.g., diagnosis, symptoms) confidential and limit those who know the individual’s name to as few people as possible.13 Employers are still able to provide general descriptions of the affected employee (e.g., the employee’s work location) and can notify specific employees who may have come into contact with the affected employee.14

Disability Status

On Dec. 14, 2021, the EEOC, in its guidance, clarified that COVID-19 can be, but is not always, an “actual disability” under the ADA.15 An “actual disability” under the ADA is a medical condition that substantially limits one or more of an individual’s major life activities. Specifically, the EEOC highlighted that COVID-19 affects major life activities, such as walking, breathing, and eating. However, determining whether an employee with COVID-19 has an “actual disability” protected by the ADA is an individualized analysis to determine whether their major life activities are affected. If an employee is found to have an actual disability, they are entitled to reasonable accommodations, unless providing the accommodation would result in an undue hardship for the employer.

The EEOC’s guidance provides some helpful distinctions between individuals with COVID-19 symptoms that substantially limit major life activities and individuals with COVID-19 symptoms that do not substantially limit those activities. COVID-19 symptoms that are considered to substantially limit major life activities include the following:

• Intermittent multi-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor determines is a symptom of COVID-19. • Breathing difficulties and shortness of breath that requires supplemental oxygen and associated fatigue lasting, or expected to last, for several months. • Heart palpitations, chest pain, and shortness of breath lasting, or expected to last, for several months. • “Long COVID-19” and its associated symptoms, including intestinal pain, vomiting, and nausea lasting for many months, even if intermittently.16

Individuals who are asymptomatic or have symptoms such as congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort that resolve within several weeks are not considered to have symptoms that substantially limit major life activities.17 As to whether the disability status of an individual with COVID-19 can vary based on the symptoms they are experiencing, it is vital for employers to engage in an individualized disability status assessment when faced with a COVID-19 positive employee’s disclosure of his or her medical condition or request for an accommodation.

Reasonable Accommodation

In addition to being required to provide reasonable accommodations for employees that have an actual disability due to COVID-19, the ADA also requires employers, if requested, to provide additional reasonable accommodations to employees whose medical conditions, such as anxiety disorders, were exacerbated by the COVID-19 pandemic. Nevertheless, the good news for employers is that pursuant to the EEOC’s guidance, an employer’s financial status (i.e., the employer’s amount of discretionary funds available) will be given more weight when determining whether an employee’s requested accommodation poses an undue hardship.

Prior to asserting that an accommodation poses an undue hardship, however, it is imperative for employers to ensure that they engage in the interactive process with the employee in order to avoid liability. In fact, failure to do so can be fatal to an employer’s reasonable undue hardship argument. For example, last year, the District Court for the District of Massachusetts issued a preliminary injunction against an employer to prevent the firing of a manager who the employer would not permit to telework. In Peebles v. Clinical Support Options, Inc., Peebles was a manager who suffered from asthma. Clinical Support Options (“Options”) did not permit its managers to telework full time; however, Peebles argued that because his asthma put him at a greater risk of complications if he contracted the COVID-19 virus, he could not work safely in the workplace, and he requested to telework.18 Options denied his request to telework pursuant to its practice that managers were not permitted to telework full time.19 In granting Peebles’ request for a preliminary injunction, the court found Options’ failure to engage in an interactive process with Peebles regarding the accommodations he needed to be fatal with respect to the actions it took after receiving Peebles’ request to telework.20 Therefore, an important take-away for employers from this case is that an interactive process is crucial to reducing liability under the ADA, and that it is prudent to engage in that process, even when there is a clear work rule prohibiting the accommodation.

Vaccinations

As COVID-19 vaccinations have become widespread and some employers have elected to implement vaccination mandates, employers should also be mindful of employees’ protections under the ADA with respect to COVID-19 vaccines. Generally, employers are permitted to have mandatory vaccination programs but are also required to provide reasonable accommodations to disabled employees who are unable to receive a COVID-19 vaccine due to their disability, unless doing so would cause an undue hardship.21 However, in the case of mandatory vaccines, employers may invoke the “direct threat” defense. The direct threat defense can be used to justify an employer’s refusal to accommodate an employee because doing so would result in the employee being a direct threat to the health and safety of others in the workplace.22 The employer must also show that an accommodation would not reduce or eliminate the health and safety risk.23

In cases challenging employer vaccine mandates, public health arguments have been successful with respect to showing undue hardship in defense of an employer’s vaccination mandate against reasonable accommodation claims—particularly in healthcare settings.

Indeed, in Together Employees v. Mass General Brigham Incorporated, the court found that providing the plaintiffs with an exemption from the vaccination mandate would impose an undue hardship in light of Mass General’s mission to provide medical care to patients.24 Moreover, even with the available accommodations of social distancing and testing, the court found that Mass General still demonstrated that accommodation would result in an undue hardship, as it still risked the health of its patients who were medically vulnerable to COVID-19.25 Therefore, employers who frequently interact or provide services to populations who are “high risk” for COVID-19 complications (such as individuals over 65) should consider this defense when facing reasonable accommodation challenges against their vaccine mandates.

Courts have also recognized that there is a public interest in employers having the ability to take preventative measures against COVID-19, including requiring employees to receive vaccinations.26 Further courts have also found that there is a public interest in a company’s ability to retain a government contract and therefore continue to employ employees.27 Courts’ acknowledgment of these interests, therefore, may also assist employers in defense against requests for equitable relief (e.g., injunctive relief) against their vaccine mandates.

Moving Forward

COVID-19’s impact on labor and employment laws, and the ADA in particular, is constantly evolving. Indeed, the EEOC’s guidance clarifying that COVID-19 could qualify as an actual disability was issued just this month. It is therefore prudent for employers to continually monitor these developments and be vigilant in training their managers and supervisors to ensure they are apprised of the protections employees with COVID-19, and disabilities generally, have under the ADA. Finally, employers should also begin to arm themselves with strategies to defend against legal challenges to their COVID-19 protocols or actions taken against individuals with COVID-19, particularly in light of the EEOC’s determination that COVID-19 can qualify for an “actual disability” under the ADA.  1See generally 42 U.S.C. §§ 12101-12213. 2See 42 U.S.C. § 12112. 3Id. 4Id. 5U.S. Equal Emp. Opportunity Comm’n, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws C.1 – C.2 (Oct. 25, 2021), https:// www.eeoc.gov/wysk/what-you-should-know-about-covid-19-andada-rehabilitation-act-and-other-eeo-laws.. 6Id. at C.5. 7Id. at C.4. 8Id. at A.1. 9Id. at A.9. 10Id. at A.10. 11Id. 1229 C.F.R. § 1630.14(c)(1). 13EEOC, supra note 5, at B.5. 14Id. 15Id. at N.1. 16Id. at N.4. 17Id. 18See Peeples v. Clinical Support Options, Inc., 467 F. Supp. 3d 56, 6061 (D. Mass. 2020). 19Id. 20Id. 21EEOC, supra note 5, at K.5. 2229 C.F.R. § 1630.15. 2329 C.F.R. § 1630.2(r). 24 Together Emp. v. Mass Gen. Brigham Inc., No. 21-116 86, 2021 WL 5234394, at *11-12 (D. Mass. Nov. 10, 2021). 25Id. at *14. 26See Creger v. United Launch All. LLC, No. 21-1508, 2021 WL 5579171, at *9 (N.D. Ala. Nov. 30, 2021). 27Id.

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of Abraham Lincoln 328, 329 (Philip V.D. Stem ed., 1940). 5Task Forces, Am. Bar Ass’n, https://www.americanbar.org/ groups/criminal_justice/committees/taskforces/ (last visited Jan. 21, 2022) (including task forces on Corporate Criminal Liability, Immigration, Forensic Ethics, and International Standards). 6Veterans Assistance Task Force, Fed. Bar Ass’n, https://www. fedbar.org/blog/tag/veterans-assistance-task-force/ (last visited Jan. 21, 2022). 7See President’s Message, Fed. Bar Ass’n (June 6, 2017), https:// www.fedbar.org/blog/presidents-message-federal-litigation-sectionpromoting-civics-and-service-to-others-creation-of-the-fbas-accessto-justice-task-force-civics-success-in-new-york-south-carolinaand/. 8LSC Task Forces, Legal Serv. Corp., https://www.lsc.gov/initiatives/ lsc-task-forces (last visited Jan. 21, 2022). 9OCDETF Strike Forces, Dep’t of Just. (July 21, 2020), https://www. justice.gov/ocdetf/ocdetf-strike-forces (noting 19 locations for these strike forces). 10Attorney General Announces Initiatives to Combat Human Smuggling and Trafficking and to Fight Corruption in Central America, U.S. Dep’t of Just. (June 7, 2021), https://www.justice.gov/opa/pr/ attorney-general-announces-initiatives-combat-human-smugglingand-trafficking-and-fight. 11The Department of Justice Announces Takedown of Key MS-13 Criminal Leadership, U.S. Dep’t of Just. (July 15, 2020), https:// www.justice.gov/opa/pr/department-justice-announces-takedownkey-ms-13-criminal-leadership. 12Id. 13MS-13’s Highest-Ranking Leaders Charged with Terrorism Offenses in the United States, U.S. Attorney’s Off., E. Dist. of New York (Jan. 14, 2021), https://www.justice.gov/usao-edny/pr/ms-13-shighest-ranking-leaders-charged-terrorism-offenses-united-states. 14Utah Alternatives to Conviction Track (UACT), United States Dist. Ct. – Dist. of Utah, https://www.utd.uscourts.gov/utahalternatives-conviction-track-u-act (last visited Jan. 21, 2022). 15Id. 16Veterans Court, United States Dist. Ct. – Dist. of Utah, https:// www.utd.uscourts.gov/veterans-court (last visited Jan. 21, 2022). 17Id.