For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure. (6/11/20). Applying ADA Protections to Workers with Coronavirus-Based Disabilities In analyzing whether the long-term complications of a coronavirus infection can warrant ADA … This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup and, therefore, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information. DRO: Mask Wearing and the Americans with Disabilities Act: 7/2/2020: ODDS Fact Sheet: Unemployment Insurance, COVID-19 Stimulus Money, and other Financial Supports: English: 6/24/2020: ODDS COVID Reopening Spanish Video: Spanish: 6/8/2020: Developing a Plan for Returning to Work and Activities: 5/29/2020: Template_Lifecourse Trajectory: 5/29/2020 Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a "disability" as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment). A.13. H.1. Yes. Under Title I of the Americans with Disabilities Act (ADA), a reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process. A.7. 1630.14(d). ... the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). (4/9/20). If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance. See also Section J, EEO rights relating to pregnancy. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions. No. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. D.1. K.3. 202-663-4900 / (TTY) 202-663-4494, Call 1-800-669-4000 No. These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19. You will find ADA information, accommodation ideas, and resources for additional information. There is no official list of what conditions qualify as a disability under the ADA, and the Equal Employment Opportunity Commission, which enforces the ADA, has not ruled on whether COVID-19 counts as a disability under the law. Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. The CDC has identified a current list of symptoms. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic? After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided. The ADA direct threat requirement is a high standard. The American Diabetes Association has a sample physician letter that your provider can use to reduce the time it takes to write a letter supporting your request. D.8. It also applies to state and local government employers, employment agencies, and labor unions. The monthly The Journal of the American Dental Association (JADA) is the ADA's flagship publication and the best-read scientific journal in dentistry. B.2. Harassment may occur using electronic communication tools—regardless of whether employees are in the workplace, teleworking, or on leave—and also in person between employees at the worksite. EEOC Updates Information on the ADA and COVID-19. There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure. All employers covered by Title VII should ensure that management understands in advance how to recognize such harassment. G.1. May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam? May a manager ask only one employee—as opposed to asking all employees—questions designed to determine if she has COVID-19, or require that this employee alone have her temperature taken or undergo other screening or testing? National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR). An employer has the discretion to choose among effective accommodations. With limited exceptions, the ADA requires employers to keep confidential any medical information they learn about any applicant or employee. Coronavirus (COVID-19) Plan for the disability services sector The plan is designed to enable disability service providers to continue essential services to people with disability. An employer does not have to provide a particular reasonable accommodation if it poses an "undue hardship," which means "significant difficulty or expense." The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html for a detailed discussion about how mRNA vaccines work). This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. B.7. Under the ADA, reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Similarly, if an employee requested an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII. This is a request for reasonable accommodation, and an employer should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act. As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? D.16. Employers also should consult applicable Occupational Safety and Health Administration standards and guidance. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible. Disability Advocates Urge People To Get Vaccinated Against COVID-19. Yes. C.5. A.12. G.2. The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. It also contains information for your physician that should help them understand the need for the letter, and the seriousness of COVID … by Sandra M. Chafouleas and Emily A. Iovino, The Conversation C.2. The guidance from CDC or other public health authorities is such evidence. (9/8/20; adapted from 3/27/20 Webinar Question 6). May an employer delay the start date of an applicantwho has COVID-19 or symptoms associated with it? A reasonable accommodation that is feasible and does not pose an undue hardship in the workplace might pose one when considering circumstances, such as the place where it is needed and the reason for telework. GINA defines “genetic information” to mean: 29 C.F.R. Asking why an individual did not report to work is not a disability-related inquiry. But, the sudden loss of some or all of an employer's income stream because of this pandemic is a relevant consideration. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian? This information is designed to help employers and individuals determine effective accommodations and comply with Title I of the Americans with Disabilities Act (ADA). In addition, the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, meaning significant difficulty or expense. K.2. (4/17/20). The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules. During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. An important function of state and local governments is to help people prepare for and respond to emergencies. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. B.8. Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. For example, the fact that the period of telework may be of a temporary or unknown duration may render certain accommodations either not feasible or an undue hardship. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses "significant expense" during the COVID-19 pandemic? There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy. K.8. COVID-19, school reopening and the ADA: Frequently asked questions 1. Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough. In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. Accessibility cannot be guaranteed for external links. Based on guidance from medical and public health authorities, employers should still require–to the greatest extent possible–that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? What actions should the employer take? 2. Not necessarily. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation. The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. 4 questions on the ADA and COVID-19, answered "Five magic words" could make the difference when addressing ADA-related concerns about the novel coronavirus, NELI's David K. … Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions. D.15. May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19? See Question K.5. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed. To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. If an employer wishes to ask only a particular employee to answer such questions, or to have her temperature taken or undergo other screening or testing, the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease. (12/16/20). In other words, it is not an ADA confidentiality violation for this employee to inform his supervisor about a coworker’s symptoms. Medical information includes not only a diagnosis or treatments, but also the fact that an individual has requested or is receiving a reasonable accommodation. are considered at higher risk for developing serious complications, according to the CDC. Basic background information about the ADA and the Rehabilitation Act is available on EEOC's, The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the, The EEOC has provided guidance (a publication entitled, On March 27, 2020 the EEOC provided a webinar ("3/27/20 Webinar") which was recorded and transcribed and is available at. Under the ADA, prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. Pre-vaccination medical screening questions are likely to elicit information about a disability. While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, she may do so. May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam? (12/16/20). Do employees age 65 and over have protections under the federal employment discrimination laws? “Caregivers are also supporting their loved ones who might have a disability at home, maybe a child with a disability or an aging parent at home,” Tuman says. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date. During the COVID-19 pandemic we have seen multiple shifts in views by the public and employees. Cancer, Multiple Sclerosis, and other serious impairments are not considered disabilities. Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA does not interfere with employers following this advice. Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted. What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic? But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities. If the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process. The ADA has restrictions on when and how much medical information an employer may obtain from any applicant or employee. however, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA. Yes. A.10. E.3. Employers may remind employees that harassment can result in disciplinary action up to and including termination. I.1. The Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide reasonable accommodation for qualified applicants and employees with disabilities. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. A rock and a hard place indeed. We do not give medical or legal advice. The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace. We will continue to add new resources and information as they become available. D.2. Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate). K.5. (3/17/20). (4/17/20). The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. Special rules apply when an employer is offering employees severance packages in exchange for a general release of all discrimination claims against the employer. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation? K.6. section 1630.2(r) (regulation addressing direct threat to health or safety of self or others). 1-800-669-6820 (TTY) Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. For example, an employee may already have certain things in their home to enable them to do their job so that they do not need to have all of the accommodations that are provided in the workplace. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time. For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy. You have the right to access services you need with reasonable accommodations during the COVID-19 pandemic. Technical Assistance Questions and Answers - Updated on Dec. 16, 2020. The Centers for Disease Control and Prevention (CDC) cannot attest to the accuracy of a non-federal website. of Health and Human Services (HHS). If a manager or supervisor receives medical information involving COVID-19, or any other medical information, while teleworking, and is able to follow an employer’s existing confidentiality protocols while working remotely, the supervisor has to do so. An employer may consider whether current circumstances create "significant difficulty" in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII. What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition? The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.” To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others. An employer requires returning workers to wear personal protective gear and engage in infection control practices. F.2. Yes. (6/17/20). The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. Yes. See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard. (4/9/20). 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