FAQs

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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 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.

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FAQs — Disability and Reasonable Accommodations

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