FAQs — Disability and Reasonable Accommodations

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Does contracting COVID-19 constitute having a disability under FEHA or the Americans with Disabilities Act? It depends. For exposed employees who experience no symptoms, or only mild, temporary symptoms, COVID-19 standing alone may not qualify as a “disability” under the ADA, as temporary, non-chronic impairment with little or no long-term impact, such as broken limbs, sprained joints, concussions, and appendicitis usually are not viewed as disabilities.

Under FEHA, the employee may be disabled since FEHA includes some illness that are transitory in nature. The severity of the symptoms, whether the symptoms exacerbate an existing condition, whether complications from the illness develop, and whether there are resulting long term effects are all factors that should be considered in determining whether COVID-19 is a disability.

Must an employee with COVID-19 be accommodated under the ADA or FEHA? It depends. If the illness is a disability and the accommodation would allow the employee to perform the essential functions of his or her job an accommodation would be required if it wasn’t an undue hardship.

The law requires employers to assess whether an employee is “disabled” on an individualized basis, taking into account the employee’s particular reaction to the illness, their symptoms and any other relevant considerations.

In most cases, the required reasonable accommodation would be leave for the disabled employee. In considering leave, consider the application of the FFCRA, and FMLA/CFRA.

Remain open to other possible accommodations as we learn from the health care community whether COVID-19 has long term effects possibly turning it into a chronic condition which may be considered a disability under the law.

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

Can employers take the temperature of employees who are coming to work? Yes, during the pandemic. Temperature checks normally constitute an overly broad medical exam under the ADA and FEHA because the exam is not job related and consistent with business necessity as required by the law and would be an impermissible medical exam.

On March 19, 2020, the EEOC issued updated guidance specifically concerning COVID-19, the ADA and the Rehabilitation Act. The EEOC opined “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, it should not be an employer’s only response to the COVID-19 outbreak. The EEOC notes “some people with influenza, including the 2009 H1N1 virus or COVID-19 do not have a fever.” Rather, a temperature check is only one element of a comprehensive program, including employee education about COVID-19 symptoms, employee and visitor questionnaires or interviews related to other risk factors, limitations on non-essential travel, encouragement to work from home, emphasis on good hygiene (for example hand washing), social distancing, and assessment of paid and unpaid leave programs. Failing to take other prudent measures to limit COVID-19 exposure may undermine an employer’s good faith basis for adopting a temperature screen.

In implementing a temperature screening program, it is necessary to ensure that there is a consistent process for conducting such checks, mitigating the risk that someone excluded by a temperature check will bring a claim, and to assess any other considerations that should weigh into the decision, such as public health.

The following are measures that an employer may want to consider to help mitigate any risk associated with temperature taking:

• Implement a safe and consistent procedure designed to reduce the risk of coronavirus exposure.
• Ensuring that the screen applies to all those entering the workplace, not just employees.
• Giving employees and others prior notice about the screen and encouraging them to self-monitor for symptoms and stay away from the workplace if they are experiencing symptoms or are otherwise sick.
• Keeping any documented results confidential in a file separate from the employee’s personnel file.
• Sharing the screening results on a need-to-know basis to protect the confidentiality of employee medical information.

In addition, all non-exempt employees should be paid for whatever time it takes for them to undergo the temperature check and making paid or unpaid leave available to employees who are sent home and unable to work remotely.

In California, the law requires the employer provide not only prior notice to individuals before scanning their temperatures, but the notice must comply with the Notice of Collection under the California Consumer Protection Act. Specifically, the Notice must explain that the employer will collect the employee’s body temperature and describe each purpose for which the employer will use that information.

Can an employer require a certification from a health care provider if an employee requests an accommodation as a result of the COVID-19 illness? Yes and it’s important employers request such a certification. The law allows an employer to request a certification from a health care provider stating the employee has a health condition that requires accommodation and a description of the proposed accommodation. If the medical certification doesn’t recommend specific restrictions or the listed accommodation is vague be sure to send the certification back to the health care provider for more details. In addition, the employer should engage in a the interactive process with the employee to determine whether the condition is in fact a disability, about the essential functions of his or her job, whether the employee can perform the essential functions either with or without an accommodation, and the length of the requested accommodation.

When should an employer require a fitness-for-duty test and/or return to work clearance? The ADA/FEHA generally prohibit medical examinations and medical inquiries of current employees unless such examinations or inquiries are job related and consistent with business necessity. An examination or inquiry is job related and consistent with business necessity if the employer has reason to believe that the employee may have a medical impairment that restricts the employee’s ability to perform essential job functions and/or may pose a “direct threat” of harm to the employee or others in the workplace. A direct “direct threat” is defined as 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 likely would not be deemed to pose a direct threat due to COVID-19 unless the employee 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 the employee has been quarantined by a treating medical provider or public health official or the employer has placed the employee off work based upon reasonable, objective evidence that the employee may pose a direct threat of harm in the workplace. However, the certification should be narrowly tailored to seek information that is job related and consistent with business necessity. Therefore, where the basis for seeking the medical information is rooted only in a belief that the employee may pose a “direct threat” of harm to others by spreading the virus, but there is no indication that the employee has medical restrictions on performing essential job functions, the fitness-for-duty certification should be focused on whether or not the employee poses a direct threat in the workplace.

The CDC’s guidance discourages requiring a health care provider’s note for employees who are sick with acute respiratory illnesses to validate their illness or to return to work, in order to reduce the burden on busy healthcare providers.

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

Must an employer segregate COVID-19 medical information from other medical information? No. The ADA/FEHA requires that all medical information about a particular employee be stored separately from the employee’s 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 he or she has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19? Yes. OSHA recently issued guidance stating it will not enforce the previously required recordkeeping requirements for employers, unless the employer is in the healthcare industry, emergency response organizations or correctional facilities. Previously OSHA took the position that COVID-19 can be a recordable illness if a worker is infected as a result of performing their 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 employee has COVID-19? Yes. 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.

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 the employee requests an accommodation and it doesn’t cause an undue hardship. 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 an accommodation to eliminate possible exposure. Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship to the employer. Telework is a reasonable accommodation and should be considered if possible.

If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, is he or she now be entitled to a reasonable accommodation absent undue hardship? Yes, if the employee has a known disability, the employee requests an accommodation and it would not cause an undue hardship. Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or posttraumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.

As with any accommodation request, employers may ask questions to determine whether the condition is a disability, discuss with the employee how the requested accommodation would assist him and enable him to keep working, explorer alternative accommodations that may effectively meet his needs and request medical documentation if needed.

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? During a pandemic, ADA/FEHA covered employers may ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or 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 COVID-19 related illness? Yes, if the employee has a known disability and its made worse by COVID-19, or if the COVID-19 illness rises to the level of a disability, requests an accommodation, and the accommodation would allow the employee to return and perform the essential functions of the job and the accommodation would not be an undue hardship.

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

Must an employer accommodate an employee’s disability while the employee is temporarily teleworking? It depends. If the employee has a known disability, requests and accommodation, and the accommodation would not be an undue hardship then accommodation is probably required.

SEE ALSO

• Other sections in this book

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