By Laura Kushner
COVID-19 has changed a lot of things, but it hasn’t changed state or federal civil rights laws for protected classes of employees, at least not much. The Americans with Disabilities Act (ADA) is a good example.
The ADA rules continue to apply, but they do not interfere with or prevent employers from following the guidelines of the Centers for Disease Control and Prevention (CDC) about steps they should take regarding COVID-19.
In March of this year, the Equal Employment Opportunity Commission (EEOC) updated its pandemic guidance to respond to COVID-19. (See the EEOC guidance at https://bit.ly/eeoc-pandemic.) The guidance covers three ways the ADA is relevant during a pandemic, including that the ADA:
- Regulates an employer’s disability-related inquiries and medical examinations for applicants and employees.
- Prohibits exclusion of individuals with disabilities from the workplace (unless they pose a “direct threat”).
- Requires reasonable accommodations for employees with disabilities.
Medical inquiries are a tricky issue under the ADA, but the EEOC guidance clarifies that an employer may ask employees if they are experiencing flu-like symptoms and may even measure body temperatures during the COVID-19 pandemic.
The guidance also provides an ADA-compliant sample questionnaire to identify which employees are likely to be unavailable for work during the pandemic
Cities should be cautious and work with their city attorneys before asking asymptomatic employees about other underlying medical conditions, as the EEOC guidance differs depending on the nature of the pandemic (which changes over time).
If an employee volunteers information about underlying medical conditions, the employer must keep it confidential and also must engage in a discussion with the employee to determine whether there is a reasonable accommodation. Telework is likely a reasonable accommodation if the employee’s job duties can be performed remotely, and it does not create an undue hardship for the employer.
Modified or part-time schedules, job restructuring, and leave are also potential reasonable accommodations during a pandemic. However, such measures may not necessarily be reasonable on a long-term or permanent basis.
Teleworking employees must be accommodated in the same way they are at the worksite. For example, an employee who has been accommodated for low vision with a screen reader at the office should have one installed on computer equipment they are given to work from home.
Employer-required safety measures
An employer may require employees to wear personal protective equipment during a pandemic. However, if an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves), the employer should provide these, absent undue hardship.
Once a vaccine becomes available, an employer may not compel all employees to get the vaccine, regardless of their medical conditions or religious beliefs. Once the employer has been told of such conditions or beliefs, it must provide a reasonable accommodation unless there is an undue hardship. The guidance states that employers should encourage employees to get the vaccine, rather than requiring it. State laws also provide for exemptions.
If an employee does not report to work, the employer can ask why the employee was absent. The EEOC guidance specifically allows this, with or without a pandemic.
COVID-19 and age discrimination
Another federal law, the Age Discrimination in Employment Act (ADEA), protects employees 40 years old or older, and there are some COVID-19-related issues with that as well.
The EEOC has issued guidance that employers do not need to accommodate an employee who is afraid of coming into the workplace and contracting COVID-19 because he or she is older. But a best practice would be to work with the employee since age appears to be a major contributing factor to the fatality of the virus.
Of course, the employer cannot discriminate against an older employee in other ways. For example, allowing others to telework but prohibiting older employees with similar job duties could result in a charge of discrimination.
Some employers may react in other ways by trying to seemingly protect older workers, such as placing them on involuntary leave, mandating telework, or requiring older employees to undergo testing or engage in additional safety precautions. All of these are examples of actions that could result in charges of discrimination.
For more information on these and other employment laws relating to COVID-19, visit the League’s website at www.lmc.org/covid19.
Laura Kushner is human resources director with the League of Minnesota Cities. Contact: firstname.lastname@example.org or (651) 281-1203.