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The Americans With Disabilities Act (ADA) presents challenges for employers under any circumstances. In part, this stems from one critical difference between the ADA and other anti-discrimination laws.

Specifically, most of the federal anti-discrimination laws, including the ADA, require employers not to discriminate against individuals based on protected classifications. The ADA, however, imposes an additional obligation. Under the ADA, employers must reasonably accommodate qualified employees with disabilities, unless doing so would create an undue hardship for the employer. The ADA also imposes obligations on employers in conducting medical examinations and in seeking and maintaining medical information for all applicants and employees.

In the midst of the COVID-19 pandemic, these complexities of ADA compliance are multiplied.

Reasonable Accommodations

Employers must, of course, reasonably accommodate individuals with disabilities in the workplace. This obligation requires the employer to provide accommodations that allow those individuals to perform the essential functions of the position. As one example of how the COVID-19 virus impacts this requirement, if an employee with a disability is at higher risk for complications from the virus, the employee may be entitled to an accommodation from the employer that would allow the employee to continue performing the essential functions of the position.

In short, an employer’s obligation to engage in the interactive process and provide accommodations continues, even during pandemic conditions. However, employers should be careful not to make assumptions about an employee’s ability to perform work or attend work in person based on the employee’s medical condition.

Many employers have received an increased number of requests for accommodations that involve remote work during the pandemic. Some employers have had significant numbers of employees performing work remotely, particularly in the earlier phases of the pandemic. As some companies have transitioned back to working in person, employees with disabilities and others have sought to continue remote work. The US Equal Employment Opportunity Commission (EEOC) has published guidance making it clear that employers need not automatically grant such requests from employees with disabilities, particularly if working remotely involves excusing employees from performing essential functions of their positions. Rather, both employers and employees should continue to engage in the interactive process and focus on accommodations that allow employees to perform the essential functions of their positions.

As a practical matter, employers may view remote work during the pandemic as a trial period, providing information about whether individuals are able to successfully perform the essential functions of their positions remotely.

Another situation that employers must address involves employees with preexisting mental health conditions. These employees may have a need for new or additional workplace accommodations due to increased stress and the disruption accompanying the pandemic. The EEOC advises employers that, as with all accommodation requests, employers may ask questions and engage in a dialogue with the employee regarding the availability of accommodations. Employers are not required to provide employees with the accommodation of choice, but must enter into a dialogue with an employee with concerns and explore options for the employee.

Medical Examinations and Medical Information: Keep Confidential and Focus on Business Necessity

When dealing with employees who have the virus or have been exposed to the virus, employers are concerned about how much information they can request from the employees and whether they can (or should) require individuals to be tested for the virus.

Given current guidance from the Centers for Disease Control and Prevention, employers should be aware that they may require employees to be tested for the virus. This is because, generally speaking, an employer’s need to maintain a safe and healthy workplace makes obtaining such test information both job-related and consistent with business necessity.

Under pandemic conditions, screening employees for symptoms of the virus on a regular basis is also job-related and consistent with business necessity. In contrast, testing employees for COVID-19 antibodies does not provide information that allows the employer to keep other employees safe, so this kind of testing should not be required.

When screening results, test information, and test results are received, employers should treat this like all other medical information received from employees under the ADA. Namely, it must be segregated in a separate file and maintained confidentially. This means that it should be provided only to those who need to know the information. Employers who do contact tracing after exposure in the workplace, for example, should not identify the name of an individual employee who has tested positive, but employers can let others in the workplace know that they have been exposed.

Vaccines and COVID

As of the writing of this article, there is no approved vaccine for COVID-19. To date, the EEOC has declined to provide definitive guidance on the issue. There is some authority suggesting that a vaccination may be a “medical examination” under the ADA.

As a result, the best practice for employers is to follow the guidelines of the ADA, which prohibit medical examinations unless they are job-related and consistent with business necessity. For employees who come into close contact with others on a regular basis, such as those with patient contact in healthcare settings, vaccination may well meet this standard. For other groups of employees, employers may wish to encourage rather than require the vaccine. Employers must also provide reasonable accommodations to employees with disabilities who may not be able to undergo vaccination.

Key Recommendations

  1. Health-related inquiries and examinations, whether in the form of health screenings, COVID-19 testing, or vaccinations, must be job-related and consistent with business necessity. Employers should also ensure that any medical examinations or inquiries are maintained confidentially and in separate files.
  2. Employers should engage in the interactive process with employees with disabilities and provide reasonable accommodations that allow employees with disabilities to perform the essential functions of their positions, unless doing so would present an undue hardship for the employer.

Helen Holden serves as Of Counsel for Spencer Fane LLP in the firm’s Phoenix office.

This article is for informational purposes only and does not constitute legal advice.

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