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FAQs — Disability and Reasonable Accommodations

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FAQs

Does contracting COVID-19 constitute having a disability under the Fair Employment and Housing Act or the Americans with Disabilities Act?

It depends. For exposed employees who experience no symptoms, or only mild, temporary symptoms, COVID-19 alone may not qualify as a “disability” under the ADA because temporary, nonchronic impairment with little or no long-term impact (such as broken limbs, sprained joints, concussions, appendicitis) usually are not considered disabilities.

Under the FEHA, an employee might be disabled, because that act covers some transitory illnesses. The severity of the symptoms, whether the symptoms exacerbate an existing condition, whether complications from the illness develop and whether the illness has long-term effects are factors to determine whether COVID-19 is a disability.

Must an employee with COVID-19 be accommodated under the ADA or the FEHA?

It depends. If the illness is a disability, and an accommodation would enable the employee to perform the essential functions of his or her job, it would be required if it didn't cause the employer undue hardship.

The law requires employers to assess whether an employee is “disabled” on a case-by-case basis, taking into account the employee’s particular reaction to the illness, his or her symptoms and any other relevant considerations.

In most cases, the required reasonable accommodation would be offering leave to the disabled employee. In considering that option, examine whether the Families First Coronavirus Response Act applies, as well as the Family and Medical Leave Act and the California Family Rights Act.

Remain open to other possible accommodations as more information becomes available from the health-care community about COVID-19, and whether its long-term effects possibly render it a chronic condition that might may be considered a disability under the law.

In addition, COVID-19 might qualify as a disability under state disability laws with definitions of “disability” that are less stringent than even those of the FEHA. California encourages all employees who have become ill with COVID-19 to apply for state disability benefits.

May employers conduct temperature checks of employees coming into work?

Yes, during the pandemic. Taking someone's temperature normally constitutes an overly broad medical exam under the ADA and the FEHA because such an exam is not job related and necessary for business as required by the law, so it would be an impermissible medical exam.

On March 19, 2020, the Equal Employment Opportunity Commission updated its guidance about COVID-19, the ADA and the federal Rehabilitation Act. The EEOC opined that “if pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employee’s body temperature.”

Although taking employees’ temperatures is permissible during the pandemic, remember, as the EEOC notes, that “some people with influenza, including the 2009 H1N1 virus or COVID-19 do not have a fever.” So a temperature check is only one way to assess employees and help them navigate the workplace during the coronavirus. Employers also could educate them about COVID-19 symptoms, issue employee and visitor questionnaires, conduct interviews about other risk factors, limit nonessential travel, encourage people to work from home, emphasize good hygiene (hand-washing, social distancing, etc.) and assess paid and unpaid leave programs. Failing to take other prudent measures to limit COVID-19 exposure might undermine an employer’s good-faith basis for implementing a temperature screen.

If you do implement a temperature-screening program, you must ensure that it's a consistent process for everyone in order to minimize the risk that someone excluded from work by a temperature check will bring a claim.

Employers might want to consider taking these measures to help mitigate risks associated with temperature checks:

  • Implement a safe and consistent procedure to reduce the risk of coronavirus exposure.
  • Screen everyone those entering the workplace, not just employees.
  • Give employees and others advance notice about the screen, encourage them to self-monitor for symptoms and to stay away from the workplace if they have any, or otherwise feel sick.
  • Keep screening results confidential in a file separate from an employee’s personnel file.
  • Share screening results only on a need-to-know basis to keep employee medical information confidential.

All nonexempt employees should be paid for the time it takes to check their temperatures. Employees who are sent home and are unable to work remotely should receive leave, paid or unpaid.

California law requires employers to provide advance notice of temperature checks that complies with the notice of collection under the state's Consumer Privacy Act. Specifically, the notice must explain that the employer will take the employee’s body temperature, and describe each purpose for which the employer will use that information.

May an employer require certification from a health-care provider if an employee requests an accommodation due to COVID-19 illness?

Yes, and it’s important for employers to request it. The law allows an employer to request a certification from a health-care provider stating that the employee has a health condition that requires accommodation, and describing the proposed accommodation. If the medical certification doesn’t recommend specific restrictions, or the accommodation is vague, the employer should send the certification back to the provider for additional detail. In addition, the employer should engage with the employee to determine whether the condition is, in fact, a disability, and to discuss the essential functions of his or her job, whether he or she can perform them with or without an accommodation, and how long the accommodation should last.

When should an employer require a fitness-for-duty test and/or return-to-work clearance?

The ADA and the FEHA generally prohibit medical examinations and medical inquiries of current employees unless, according to the EEOC, they are "job-related and consistent with business necessary." An examination or inquiry meeting that definition occurs when the employer has reason to believe that the employee might have a medical impairment that restricts her or his ability to perform essential job functions and/or might pose a “direct threat” of harm to the employee or others in the workplace. A “direct threat” is a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or sufficiently reduced by reasonable accommodation.

An employee probably wouldn't be deemed a direct threat due to COVID-19 unless the worker is known to have contracted the virus, has come into close contact with someone known or likely to have the virus, or is exhibiting symptoms that may be associated with the virus. Employers may request a fitness-for-duty or return-to-work certification if an employee has been quarantined by a treating medical provider or public health official, or the employer has taken the employee off work based on reasonable, objective evidence that he or she might pose a direct threat of harm in the workplace. Certification should be tailored narrowly to seek only information that is job related and consistent with business necessity. So if the basis for seeking the medical information is rooted only in a belief that the employee might pose a direct threat of harm to others by spreading the virus, but there's no indication that he or she is medically restricted from performing essential job functions, the fitness-for-duty certification should be focused on whether or not the employee poses that threat.

To reduce the burden on busy health-care providers, the CDC discourages requiring a health-care provider’s note for employees who are sick with acute respiratory illnesses –– either to validate it, or to return to work.

If a returning employee was on FMLA or CFRA leave to care for his or her own serious health condition or the serious health condition of a family member, the employer may require a return-to-work certification if the employer’s FMLA/CFRA policy and practice requires it.

Must an employer segregate COVID-19 medical information from other kinds of medical information in an employee's file?

No. The ADA and the FEHA require that all medical information about a particular employee be stored separately from her or his personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s temperature scans, statement that he or she has the disease or suspects so and the employer’s notes or other documentation from questioning the worker about symptoms.

May an employer disclose the name of an employee to a public health agency when it learns that he or she has COVID-19?

Yes. OSHA recently issued guidelines stating it will not enforce the previously required recordkeeping for employers, unless an employer is in the health-care industry, emergency response organizations or correctional facilities. Previously, OSHA took the position that COVID-19 may be a recordable illness if a worker is infected from performing work-related duties.

May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns that the worker has COVID-19?

Yes. The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer might need to determine if the worker had contact with anyone in the workplace.

Must an employer accommodate an employee who, due to an existing disability, is at a higher risk from COVID-19?

Yes, if the employee has a known disability and requests an accommodation that doesn’t cause an undue hardship. Reasonable accommodations might offer protection to an individual whose disability puts him at greater risk from COVID-19 and who requests one to protect against possible exposure. Even with the constraints imposed by a pandemic, some accommodations might meet an employee’s needs on a temporary basis without causing undue hardship to the employer. Telework is a reasonable accommodation that should be considered if possible.

If an employee has a pre-existing mental illness or disorder that has been exacerbated by the COVID-19 pandemic, is he or she entitled to a reasonable accommodation absent undue hardship?

Yes, if the employee has a known disability and requests an accommodation that would not cause an undue hardship. Although many people are extremely stressed by the COVID-19 pandemic, employees with some pre-existing mental health conditions –– for example, anxiety disorder, obsessive-compulsive disorder, post-traumatic stress disorder –– might have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.

As with any accommodation request, employers may seek medical documentation, ask questions to determine whether the condition is a disability, discuss how the requested accommodation would assist the worker and enable him or her to keep working, and explore alternative accommodations that could meet his needs.

How much information may an employer request from an employee who calls in sick in an effort to protect the rest of its workforce during the COVID-19 pandemic?

During a pandemic, ADA/FEHA-covered employers may ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, they include fever, chills, cough, shortness of breath, extreme fatigue and sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

Must an employer consider leave as a reasonable accommodation for illness related to COVID-19?

Yes, if the employee has a known disability that's made worse by COVID-19; if the COVID-19 illness reaches the level of a disability; if the employee requests an accommodation; and the accommodation would allow the worker to return and perform the essential functions of the job. The accommodation must not impose undue hardship on the employer.

Employers also should consider an employee’s eligibility for paid sick leave under the FFCRA, and whether the employee’s disability reaches the level of a serious health condition and, if so, whether the employee also is eligible for FMLA- or CFRA-protected leave.

Must an employer accommodate an employee’s disability while the worker temporarily is teleworking?

It depends. If the employee has a known disability, and requests an accommodation that would not be an undue hardship, it's probably required.

In a business where all employees are required to telework, should the employer postpone discussing a request from a worker with a disability for an accommodation that will not be needed until he or she returns to the workplace when mandatory telework ends?

Not necessarily. An employer might give higher priority to requests for reasonable accommodation necessary for teleworking, but could begin considering return-to-work accommodations now. The employer might be able to collect in advance all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also might be able to make some arrangements for the accommodation in advance.

What if an employee had a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation?

An employee who was granted a reasonable accommodation prior to the pandemic might be entitled to an additional or altered accommodation, absent undue hardship. For example, a different type of accommodation might be necessary for teleworking than what is used in the workplace. The employer should discuss with the employee whether the same or a different disability is the basis for the new request, and why an additional or altered accommodation is needed.

During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may an employer request information to determine if the condition is a disability?

Yes, if the disability is not obvious or already known, an employer may ask questions or request medical documentation to determinate whether the employee has a disability as defined by the ADA.

During the pandemic, may an employer engage in the interactive process and request information from an employee about why an accommodation is needed?

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one requested or another. As when evaluating other accommodation requests, an employer may ask: (1) how the disability creates limitation; (2) how the requested accommodation will address the limitation; (3) whether another form of accommodation could effectively address the issue; and (4) how a proposed accommodation will enable the employee to continue performing the essential functions of his of her position.

If it is urgent to provide an accommodation, or if the employer has limited time to discuss the request during the pandemic, may it provide a temporary accommodation?

Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information with the employee, and grant the request. In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations also might change. This could result in more requests for short-term accommodations. Also, employers might want to adapt the interactive process to devise end dates for the accommodation to suit changing circumstances based on public health directives.

Are the circumstances of the pandemic relevant to whether a requested accommodation may be denied because it poses an undue hardship?

Yes. An employer does not have to provide a particular reasonable accommodation if it poses an undue hardship, which means that granting it would cause significant difficulty or expense. In some instances, an accommodation that would not have posed an undue hardship prior to this pandemic might pose one now.

What should employers consider to determine if a requested accommodation poses significant difficulty that might qualify as an undue hardship during the COVID-19 pandemic?

An employer may consider factors that might not be present absent the pandemic. For example, it could be significantly more difficult during the pandemic to conduct a needs assessment, or to acquire certain items whose delivery might be affected, particularly for employees who might be teleworking. It could be significantly more difficult to provide employees with temporary assignments, to remove marginal functions or to readily hire temporary workers for specialized positions.

What should employers consider to determine if a requested accommodation poses the undue hardship of significant expense during the COVID-19 pandemic?

Prior to the appearance of the coronavirus, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources. (Always consider the budget/resources of the entire entity, not just its components.) But the sudden loss of some or all of an employer’s income stream due to the pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available in light of other expenses, and whether there's an expected date that current restrictions on operations will be lifted or new restrictions will be added or substituted. These considerations do not mean that an employer may reject any accommodation that has a monetary cost; the business must weigh the cost of the accommodation against its current budget mindful of constraints created by the pandemic.

As stay-at-home orders and other restrictions are modified or lifted, how will employers know what steps to take consistent with the ADA to screen employees for COVID-19 when entering the workplace?

The ADA permits employers to make disability-related inquiries and conduct medical exams if they are job related and consistent with business necessities. Inquiries and reliable medical exams meet the standard if it's necessary to exclude employees with a medical condition that would pose a direct threat to health and safety.

Such threat is assessed based on the best available objective medical evidence. Guidance from the CDC or other public health authorities is such evidence. So, employers are acting consistent with the ADA as long as any screening they implement comports with advice from the CDC and public health authorities for that type of workplace at that time.

If an employer requires workers to wear personal protective gear and engage in infection control practices, what is its obligation to an employee who requests accommodation for modified protective gear?

An employer may require employees to wear protective gear (masks and gloves) and observe infection control practices (regular hand-washing, social distancing).

Sometimes an employee with a disability needs a related reasonable accommodation under the ADA (for example, nonlatex gloves, modified face masks for interpreters who communicate with an employee who uses lip reading, gowns designed for individuals who use wheelchairs, etc.), or a religious accommodation under Title 7 (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.

Must an employer grant telework as a reasonable accommodation to every employee with a disability who wishes to continue to work from home after the public health measures are no longer necessary?

No. The EEOC recognizes that the employer still is entitled to inquire about and understand the disability-related limitation that necessitates an accommodation. Absent such a limitation requiring telework, no continued work-from-home accommodation is required. If there is a disability-related limitation that can be addressed with another form of reasonable accommodation at the workplace, the employer may choose that option over telework.

If, prior to the pandemic, an employee with a disability requested telework as a reasonable accommodation and the employer denied the request due to concerns that he or she would not be able to perform essential job functions remotely, must the employer grant the accommodation request after the pandemic if the employee renews the request?

It depends. The experience during the temporary telework situation could be considered a trial to determine if the worker could perform all essential job functions working remotely. The employer should reconsider its initial, pre-pandemic decision, and decide accordingly.

See Also



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