As businesses begin to reopen in Massachusetts, some employees are returning to physical workplaces. Yet many employees may have underlying conditions that could put them at increased risk of severe illness if they contract COVID-19. Accordingly, certain employees may be able to seek reasonable accommodations under the Americans with Disabilities Act (ADA). It is important for employees to know what reasonable accommodations might look like with regard to coronavirus protections, and for employers to understand their obligations when it comes to employee accommodation requests pertaining to COVID-19 risks.
Can Employees be Questioned About or Screened for COVID-19 Without Violating the ADA?
The ADA does not permit an employee to broadly make inquiries about an employee or prospective employee’s disabilities or needs for reasonable accommodation. However, as the U.S. Equal Employment Opportunity Commission (EEOC) clarifies, the federal law does permit employers to ask questions about a disability or to conduct a medical exam if it is “job-related and consistent with business necessity.” How do these distinctions relate to coronavirus screenings? In short, an employer can remain ADA-compliant if it makes inquiries or conducts medical exams if doing so is necessary to exclude employees with a particular medical condition (i.e., COVID-19) from the workplace when that medical condition would pose a direct threat to the health or safety of others at the workplace.
To be compliant with the ADA, employers generally must follow the CDC’s advice for preventing COVID-19 threats in the workplace. An employer is permitted to take employees’ temperatures or make inquiries about an employee’s medical symptoms to prevent the spread of the coronavirus.
Can an Employee Request Modified Protective Gear as a Reasonable Accommodation Under the ADA?
Most businesses in Massachusetts that are reopening will require employees who are returning to the workplace to wear some form of personal protective equipment (PPE) such as face masks or gloves, and will require employees to adhere to infection-control practices. Some employees may have disabilities that require modified PPE, such as non-latex gloves or a modified face mask for an employee who needs lip reading. Employees may also need accommodation under Title VII of the Civil Rights Act of 1964 due to religious garb. Unless the requested accommodation poses an undue hardship, the employer generally must provide it.
How Does an Employee Request a Reasonable Accommodation Due to an Underlying Condition?
If an employee has an underlying condition, that employee must tell the employer and request an accommodation. The employer may be permitted to ask additional questions about the underlying medical condition or request medical documentation.
If an employer knows an employee has an underlying condition but that employee does not request an accommodation, the ADA does not require the employer to provide one. However, it is important to know that, even if the employer has concerns about the employee’s health, the employer cannot prevent the employee from returning to work or take any adverse actions solely because the employee has an underlying condition that places him or her at higher risk of a severe COVID-19 infection.