As businesses across the country begin to reopen, it is important to consider the issues and circumstances that may give rise to claims under the Americans with Disabilities Act (ADA). This month’s blog will cover common reopening questions that may implicate the ADA and discuss the rights and obligations of employers under the ADA to avoid unnecessary retaliation and discrimination claims.
Under the ADA, individuals with a qualifying disability are protected against discrimination in the terms or conditions of employment on the basis of a disability. An employee is disabled if they have a physical or mental impairment that substantially limits one or more major life activities, have a record of a substantially limiting impairment, or if they are regarded as having a substantially limiting impairment by their employer.
An employee with a qualifying disability requests to telework as a new or additional accommodation. Do I have to let them work from home?
A telework request should be treated like any other request for a reasonable accommodation; the employer should engage in the interactive process with the employee to determine what accommodation is reasonable and appropriate. As with all accommodation requests, the employer is entitled to request information about the individual’s medical condition if the reason for the accommodation is not obvious. The employer is also entitled to inquire as to how the employee’s disability or medical condition interferes with their ability to do their job and also suggest other, alternative accommodations to address the employee’s concerns. The accommodation adopted by the employer does not have to be the employee’s preferred accommodation, so long as it is reasonable.
If an employee with a qualifying disability is already receiving an accommodation and requests to telework, you should similarly engage in the interactive process with the employee to determine whether the accommodations in place are sufficient, and what alternative or additional accommodations, if any, may be available besides telework.
An employee informs me that they live with someone who is at a high risk for contracting COVID-19 and asks to work from home. Is this covered by the ADA?
No, only employees who have a qualifying disability are covered under the ADA. Therefore, employers would not have to accommodate these requests.
An employee tells me they cannot wear a face mask or another form of Personal Protective Equipment (PPE), such as latex gloves. What can I do?
Some employees may be unable to comply with a mandatory mask or PPE rule because of a disability protected by the ADA. Masks may pose specific health issues for a variety of physical and mental disabilities. For instance, individuals who suffer from lung conditions like asthma or pulmonary disease may experience trouble breathing with a mask, individuals who are deaf and rely on lip reading may require an accommodation to communicate with others, and individuals with mental disorders such as PTSD or claustrophobia may experience panic attacks.
If an employee informs you that they cannot wear a mask or other PPE because of a disability, they are essentially requesting a waiver from the employer’s mandatory PPE policy as a reasonable accommodation. Such requests should be managed like any other requests for a reasonable accommodation and must be decided on a case-by-case basis. Employers who receive these requests need to determine whether they can provide such a waiver as a reasonable accommodation while also protecting other employees from COVID-19. If possible, employers should consider other reasonable steps to reduce potential transmission; such as maintaining social distance, using alternatives to in-person communication like email or phone calls, or temporary staggering of employee shifts.
I believe an employee has a disability that puts them at a high risk for contracting COVID-19 but they have not disclosed their disability to me. Can I ask them to work from home?
Generally, no. Employees typically initiate the interactive process by requesting an accommodation. And an employer cannot terminate an employee for refusing to accept a reasonable accommodation unless the employee poses a direct threat to themselves or others. However, the EEOC has stated that an employer should initiate the interactive process when the employer: 1) knows that the employee has a disability; 2) knows or has reason to know that the employee is experiencing workplace problems because of the disability; and 3) knows or has reason to know that the disability prevents the employee from requesting a reasonable accommodation. If the employer approaches an employee with a disability and the employee indicates that they do not need a reasonable accommodation, the employer need not continue the interactive process.
Can I continue to ask employees about any COVID-19 related symptoms they are experiencing?
Yes. During a pandemic, employers are entitled to ask employees entering the workplace whether they are experiencing any symptoms of the pandemic virus that have been identified by the CDC and other public health authorities. For COVID-19, these symptoms include fever, headache, shortness of breath, cough, fatigue, a congested or runny nose, or gastrointestinal symptoms; but as we learn more about the virus, this list may expand.
Can I continue to require employees experiencing COVID-19 related symptoms to stay home?
Yes. Employers may require employees who are experiencing COVID-19 symptoms to stay home from work. The EEOC has stated that such requests by employers do not violate the ADA either because 1) such requests are not disability-related or 2) they are permitted under the ADA because the illness is serious enough to pose a direct threat to the employee and their fellow coworkers. For example, if you notice an employee has a persistent, hacking cough you may ask to take their temperature or request that they go home.
When an employee returns to work after experiencing COVID-19 related symptoms, can I require a doctor’s note certifying fitness for duty?
Yes. Employers are permitted to inquire into an employee’s fitness for duty. However, as a practical matter, many doctors and other health care professionals are still busy managing the pandemic as well as a backlog of delayed healthcare needs, so employees may be unable to provide fitness-for-duty documentation in a timely manner. Employers who are still interested in obtaining a fitness for duty certification from employees before they return to work may request employees provide a form, stamp, or email from a local clinic certifying the individual does not have the virus.
Can I still enforce social distancing policies and measures, like one-way walkways and partitions, which may make some places not ADA-accessible?
Employers can enforce social distancing policies, but they must ensure workplaces are still accessible to disabled employees. For instance, a workplace may need to be modified so that desks in a communal area are six-feet apart. Employers should be careful when implementing these changes to ensure their workplaces are still accessible to employees with disabilities.
The attorneys at Fishel Downey regularly work with employers on a range of employment issues. If you have a specific question, contact one of the attorneys at Fishel Downey Albrecht & Riepenhoff LLP at 614-221-1216.