As North Carolina continues to reopen, many employers are searching for guidance to protect themselves and their employees from COVID-19 once they go back to work. To ease this transition, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued updated guidelines interpreting the Americans with Disabilities Act (“ADA”) regarding the measures that employers should take to shield themselves from liability while operating a safe and inclusive workplace.
Permissible Preventative Measures
The ADA allows employers to screen their employees, as well as patrons of their businesses, for COVID-19 related symptoms identified by the Center for Disease Control (“CDC”), or other reputable medical sources, before permitting or denying entry. As tests become more available, employers who want to test their employees for COVID-19 are allowed to do so if they choose. Additionally, employers may require preventative measures like social distancing or masks in the office. While it is also permissible under the ADA for employers to request a doctor’s note certifying an employee’s fitness to return to work after sick leave, as a practical matter, access to health care professionals might be limited during this time period. Employers should use their best judgment to implement suitable alternatives to this policy.
Employers must keep all employees’ medical information separate from the main personnel files. COVID-19 related records such as temperature logs must also be held securely in these medical files. Regardless of confidentiality concerns associated with properly storing medical records, an employer will not be liable for breaching confidentiality if he or she discloses that an employee has contracted COVID-19 to the appropriate public health agency. To ensure continuing compliance with the ADA, employers should check the CDC frequently to verify that they are still following all appropriate directives, as the pandemic has created an ever-evolving public health environment.
Excluding Workers Based on Disability
The CDC has identified a number of risk factors for COVID-19, including underlying medical conditions like heart or lung disease, obesity, and diabetes. Immunocompromised individuals such as those receiving treatment for cancer, or who suffer from viruses like HIV/AIDS, as well as persons over the age of sixty-five, all run an elevated risk of contracting the coronavirus.
Per the EEOC’s guidelines, an employer may not exclude an at-risk employee from the workplace solely because the employee falls into one of the CDC’s risk factor categories. However, employees who suffer from disabilities that constitute a direct threat to their health under 29 C.F.R. section 1640.2(r) are excluded from this directive, if the disability cannot be adequately addressed with a reasonable accommodation. As defined by the EEOC, a reasonable accommodation is a change in the workplace designed to place the disabled individual on the same playing field as all other employees or job applicants.
Determining whether an employee’s disability constitutes a direct threat requires an individually tailored analysis that is extremely fact specific. Factors that may be considered include the likelihood and potential severity of harm to the individual, as well as the concentration of COVID-19 cases in that employer’s particular geographical area, along with an analysis of whether the employee’s disability is manageable.
It is important to note that unless the employee requests accommodations, employers are under no obligation to proactively provide accommodations, even if the employer already knows that the employee has a condition that would place them at a higher risk of contracting COVID-19. The employee may request accommodations either orally or in writing, or a third party such as a doctor may request accommodations on the employee’s behalf. Once an employer receives notice that an employee might be eligible for accommodations, he or she may request medical documentation or ask further questions to determine if the employee actually qualifies for accommodations. Permissible questions should address how the disability creates a limitation and how that could be mitigated with a reasonable accommodation that would also allow the employee to continue performing necessary job functions.
Depending on the type of employment, reasonable accommodations that an employer may be expected to provide could include personal protective equipment, masks, barriers, or increased space between employees. Other accommodations might require alterations to traditional work schedules, reassigning employees to a different work area, or allowing them to work from home. Employers must provide reasonable accommodations unless doing so would create an undue hardship, in that it would impose a significant difficulty or expense. Undue hardship will be determined based on the employer’s circumstances in light of the pandemic. In effect, this means that an accommodation that might have been reasonable previously could now potentially constitute an undue hardship. While an employer may not reject an accommodation simply because it necessitates some cost, the financial burden of implementation may be weighed against the employer’s budget when determining feasibility.
Although it can be difficult for employers to know with certainty how to navigate the rapidly changing work environment, careful adherence to the CDC and EEOC’s directives is the best way to ensure that the workplace continues to function properly. Employers will face new challenges in the post-pandemic world and should exercise caution to certify that they meet their employees’ needs while still protecting the best interests of their businesses.
Article written with assistance from Cranfill Sumner & Hartzog LLP summer clerk Kayla McDaniel.