ADA and COVID-19

Apr 07, 2020

What Employees Should Know About COVID-19 and the Americans with Disabilities Act

With the recent declaration of COVID-19 as an international pandemic, employees might understandably have questions about how this affects their workplace rights under the Americans with Disabilities Act (“ADA”), the federal law that bars employers from discriminating against qualified individuals with disabilities. The Equal Employment Opportunity Commission (“EEOC”), the federal agency responsible for enforcing the ADA, recently provided some answers to help employers and employees navigate this unprecedented time. In addition, employees should consult with an experienced Ohio disability discrimination attorney, Ohio FMLA attorney, or Ohio employment lawyer if they feel that their employer is or has unlawfully discriminated against them in any way.

Can my employer terminate me for contracting COVID-19 or symptoms?

The answer to this question likely depends on whether you have another underlying serious medical condition or disability. The ADA protects employees from unfavorable treatment based on a qualified medical condition or disability. If your reaction to COVID-19 complicates or exacerbates another known serious medical condition or disability, you may still be protected by the ADA. In such a case, your employer would be required to engage in an interactive process with you to determine if a reasonable accommodations, such as the ability to work remotely, is available that could help you continue performing the essential functions of your job. If so, your employer cannot terminate you or otherwise discriminate against you.

On the other hand, COVID-19 is not a permanent disease, so it does not constitute a disability under the ADA, standing alone. Furthermore, the EEOC has determined that an individual with COVID-19 poses a direct threat to the safety of the individual and others, which means that such an individual would not be protected by the ADA’s antidiscrimination provisions.

Although COVID-19 does not qualify as a disability under the ADA, other legislation may still provide protection, such as the recently enacted Families First Coronavirus Response Act or the Family Medical Leave Act. Under this situation, you should consult with a Columbus disability discrimination attorney or Columbus FMLA attorney if you think your employer’s conduct might violate such laws.

If I do not have COVID-19 or symptoms, can my employer ask me whether I have a medical condition that could make me especially vulnerable to COVID-19?

No. This would be an impermissible disability-related inquiry under the ADA. Further, employers may not assume that an employee’s known medical condition or disability puts him or her at an increased risk of COVID-related complications. An employer may, however, ask its employees whether they have recently traveled to certain locations if the CDC or local public health officials specify those locations as high risk.

Can my employer take my temperature to determine whether I have a fever?

Yes. Because COVID-19 has been declared a pandemic, employers may measure employees’ body temperature. Employers must still keep this information confidential.

Can my employer require me to leave work or stay home if I display symptoms?

Yes. The EEOC recommends that employers follow CDC guidelines during this time. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice. Contact a Columbus employment attorney if you feel you have been discriminated against.

If I call in sick or report feeling ill, how much information can my employer request from me before I return to work?

If employees call in sick or report feeling ill, employers may ask such employees if they are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath or sore throat. Employers are allowed to request this information to protect the rest of their workforce. At the same time, employers must keep this information confidential as with any other medical information under the ADA.

Before allowing employees who previously called in sick to return to work, employers may request a doctor’s note certifying that the employee is fit to return to duty. Because of how busy doctors and other health care professionals are during this time, the EEOC recommends that employers adopt a flexible approach to this issue. Instead of the traditional doctor’s note, a form, stamp, or an email may suffice to certify that an individual does not have COVID-19.

If I was just recently offered a job, can my employer delay my start date or withdraw the job offer if I have COVID-19 or symptoms?

Yes. According to the CDC, an individual who has COVID-19 or symptoms poses a “direct threat” to the safety of herself or others and cannot safely enter the workplace. Employers are permitted to screen for COVID-19 or symptoms. If you have COVID-19 or symptoms, your employer may delay your start date or withdraw the job offer altogether. Furthermore, employers are permitted to conduct post-offer medical examinations to identify medical conditions that the CDC associates with an increased risk of complications, so long as all entering candidates in the same job category are required to undergo this medical examination. Employers may not, however, rescind a job offer because of an entering employee’s medical condition that makes her more susceptible to complications, unless that employee poses a “direct threat” to herself or others despite a reasonable accommodation.

Above all, this is a complicated time for employees seeking to understand their rights under the ADA. Although helpful, the EEOC’s recent guidance does not address all possible scenarios involving COVID-19, and you may have further questions about whether your employer’s conduct violates the ADA or other federal or state anti-discrimination laws.

At Brian G. Miller Co., L.P.A., our Columbus employment lawyers are experienced in handling employment issues under the ADA and other anti-discrimination laws. Our Columbus employment attorneys represent clients in Columbus, Ohio, the surrounding counties, and Southern, Ohio. To set up a free consultation about your potential employment issue with a trusted, respected, and experienced disability discrimination attorney or Columbus FMLA attorney, or to inquire about our other legal services, please contact our firm at (614) 221-4035.