To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html for a detailed discussion about how mRNA vaccines work). (12/16/20). Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The employer needs to maintain the confidentiality of this information. The question is really what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Employers and employees should follow guidance from the Centers for Disease Control and Prevention (CDC) as well as state/local public health authorities on how best to slow the spread of … *UPDATED IN RESPONSE TO COVID-19 PANDEMIC – March 21, 2020 *NOTE ABOUT 2020 UPDATES: The EEOC is updating this 2009 publication to address its application to coronavirus disease 2019 (COVID-19). State regulations, recommendations and mandates regarding the safe practice of dentistry, during the COVID-19 pandemic, have varied widely. Yes. Pre-vaccination medical screening questions are likely to elicit information about a disability. During the COVID-19 pandemic, may an employer request information from employees who work on-site, whether regularly or occasionally, who report feeling ill or who call in sick? Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. Ada's Cafe in Palo Alto, which employs people with disabilities, is barely treading water amid the COVID-19 pandemic. The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential. Harassment of employees at the worksite may also originate with contractors, customers or clients, or, for example, with patients or their family members at health care facilities, assisted living facilities, and nursing homes. Asking why an individual did not report to work is not a disability-related inquiry. People with down syndrome are 10 times more likely to die. The ADA generally prohibits employers from discriminating against applicants or employees on the basis of disability. F.1. Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology. The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions. Yes. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). People with disabilities, people with chronic health conditions such as heart disease, lung disease, and diabetes, and people over the age 60, are at a higher risk of becoming infected and most likely to become seriously ill. Note that a positive test result reveals that an individual most likely has a current infection and may be able to transmit the virus to others. No. Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? (9/8/20; adapted from 3/27/20 Webinar Question 1). (3/18/20). How does the ADA apply to this situation? No. Note: Other federal laws, as well as state or local laws, may provide employees with additional protections. An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations. The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government’ programs and services. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. Under the ADA, prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. Yes. Website by the Southeast ADA Center, member of the ADA National Network and project of the Burton Blatt Institute (BBI) - Syracuse University. The health and safety of those we serve continues to be the top priority of the American Diabetes Association (ADA). The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact—if they wish—to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return. Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. This advice gives guidance on how the disability sector can operate and prioritise their efforts in this current stage of the coronavirus (COVID-19) response. G.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? B.5. The monthly The Journal of the American Dental Association (JADA) is the ADA's flagship publication and the best-read scientific journal in dentistry. Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted. Information, Guidance and Training on the Americans with Disabilities Act (ADA) 1-800-949-4232. As it relates to employment, Title I of the ADA protects the rights of both employees and job seekers. Before sharing sensitive information, make sure you’re on a federal government site. Any medical exams are permitted after an employer has made a conditional offer of employment. (4/17/20; updated 9/8/20 to address stakeholder questions). (9/8/20; adapted from 3/27/20 Webinar Question 22). JAN provides the following A to Z listings by disability, topic, and limitation. However, for those employees who are teleworking and are not physically interacting with coworkers or others (for example, customers), the employer would generally not be permitted to ask these questions. An employer knows that an employee is teleworking because the person has COVID-19 or symptoms associated with the disease, and that he is in self-quarantine. See Question K.5. An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation. There may also be constraints on the normal availability of items or on the ability of an employer to conduct a necessary assessment. May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam? Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. Symptoms associated with COVID-19 include, for example, fever, chills, cough, and shortness of breath. Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion. As such, they may request reasonable accommodation for their disability as opposed to their age. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup and, therefore, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information. National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR). Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible. Yes. May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19? Direct threat is to be determined based on the best available objective medical evidence. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. COVID-19, school reopening and the ADA: Frequently asked questions 1. (6/11/20). Businesses should refer to the Americans with Disabilities Act (ADA) Best Practices ... the-covid-19-crisis-02304237 . Accessibility cannot be guaranteed for external links. (5/5/20). The employer may be able to acquire all the information it needs to make a decision. (12/16/20). (6/11/20). E.3. I.1. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Employees may request an ADA accommodation at any time. 1630.14(d). Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available absent undue hardship. This website is regularly updated to provide the disability community with information about rights under the Americans with Disabilities Act (ADA) and how they apply to the coronavirus (COVID-19) pandemic. Applying ADA Protections to Workers with Coronavirus-Based Disabilities In analyzing whether the long-term complications of a coronavirus infection can warrant ADA … C.5. A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability—not the disability in general—using the most current medical knowledge and/or on the best available objective evidence. (6/11/20). No. AAHD is committed to providing quality fact based information on COVID-19 and people with disabilities. This non-taxable, non-reportable, one-time payment provides up to $600 in recognition of the extraordinary expenses incurred by persons with disabilities during the COVID-19 pandemic.. In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing). First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. As part of the institutional response to COVID-19, the University is committed to supporting employees impacted by COVID-19. But to the extent that is not feasible, the supervisor still must safeguard this information to the greatest extent possible until the supervisor can properly store it. The Southeast ADA Center: Disability and COVID-19 includes a wide variety of information; some information is also available in Spanish. The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government’ programs and services. A.1. If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. K.8. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts her at greater risk during this pandemic. For Deaf/Hard of Hearing callers:
D.4. Is Title II of GINA implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination? A.6. (3/18/20). Technical Assistance Questions and Answers - Updated on Dec. 16, 2020. Generally, measuring an employee's body temperature is a medical examination. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations. An antibody test constitutes a medical examination under the ADA. Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee's disability necessitates an accommodation, either the one he requested or any other. We agree with The Centers for Disease Control and Prevention (CDC) that COVID-19 (coronavirus) is a serious public health threat—and older … This information is designed to help employers and individuals determine effective accommodations and comply with Title I of the Americans with Disabilities Act (ADA). Information, Guidance and Training on the Americans with Disabilities Act (ADA) 1-800-949-4232. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm. E.4. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. (3/17/20). (9/8/20; adapted from 3/27/20 Webinar Question 20). Under the ADA, an impairment needs to be a physiological or mental disorder. Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.” To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others. As a practical matter, and in light of the circumstances that led to the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework at home. During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed? Cancer, Multiple Sclerosis, and other serious impairments are not considered disabilities. If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. Prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. (4/9/20). If advance requests are received, employers may begin the "interactive process" – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. D.17. If an employer is choosing to offer flexibilities to other workers, may older comparable workers be treated less favorably based on age? Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. Can I get an ADA accommodation for this? Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. U.S. Department of Justice Civil Rights Division Information and Technical Assistance on the Americans with Disabilities Act Emergency Preparedness and Response COVID-19 Resources. G.4. Certain COVID-19 vaccines use mRNA technology. The ADA requirement that medical information be kept confidential includes a requirement that it be stored separately from regular personnel files. About COVID-19 and The Americans with Disabilities Act (ADA) My family member has a disability or has underlying medical issues. An employer may consider whether current circumstances create "significant difficulty" in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. Some employees ask for accommodations due to a need for modified protective gear. (4/9/20). This website is a collaboration of the ten regional ADA … B.3. Similarly, the CDC recently posted information on return by certain types of critical workers. B.1. The ADA 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. The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. G.3. The ADA has restrictions on when and how much medical information an employer may obtain from any applicant or employee. Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC guidance that emphasizes the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses "significant difficulty" during the COVID-19 pandemic? GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease. (6/11/20). A negative test does not mean the employee will not acquire the virus later. DOJ to Resume the Issuance of Right-to-Sue Notices for Title VII, ADA, and GINA Referrals in August 2020 Statement by Assistant Attorney General Eric S. Dreiband (8/3/20) The Department of Justice Warns of Inaccurate Flyers and Postings Regarding the Use of Face Masks and the Americans with Disabilities Act Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. (9/8/20; adapted from 3/27/20 Webinar Question 21). employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities. An employer has the discretion to choose among effective accommodations. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy? Harassment may occur using electronic communication tools—regardless of whether employees are in the workplace, teleworking, or on leave—and also in person between employees at the worksite. 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? When an employer makes this decision, the facts about particular job duties and workplaces may be relevant. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII. Find your nearest EEOC office
This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic? G.2. Disability Advocates Urge People To Get Vaccinated Against COVID-19. This website is regularly updated to provide the disability community with information about rights under the Americans with Disabilities Act (ADA) and how they apply to the coronavirus (COVID-19) pandemic. 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? The guidance from CDC or other public health authorities is such evidence. Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA? of Health and Human Services (HHS). See the following from the EEOC’s What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee. If an employer is hiring, may it screen applicants for symptoms of COVID-19? The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. (9/8/20; adapted from 3/27/20 Webinar Question 5). An important function of state and local governments is to help people prepare for and respond to emergencies. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. Also, if the employee was on leave rather than teleworking because he has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. The laws enforced by the EEOC prohibit covered employers from selecting people for furlough or layoff because of that individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity. (4/9/20). … A.7. You have the right to access services you need with reasonable accommodations during the COVID-19 pandemic. Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position). In addition, the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. The most authoritative information will be coming from official government agencies like the CDC. Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Also, the undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace. However, employers should be aware that some people with COVID-19 do not have a fever. The American Diabetes Association has a sample physician letter that your provider can use to reduce the time it takes to write a letter supporting your request. (6/11/20). The ADA direct threat requirement is a high standard. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (9/8/20; adapted from 3/27/20 Webinar Question 19). D.6. A Review by the Department for Health and Social Care in the UK, last month, found people with learning disabilities were six times more likely to die of Covid-19 than the general population. § 1635.3(c). No. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation? (4/9/20). (4/23/20). (9/8/20; adapted from 3/27/20 Webinar Question 7). Certain medical conditions included in the CDC guidelines related to increased COVID-19 risks may also be a disability under the ADA depending on the condition and its impact on the individual. An employer requires returning workers to wear personal protective gear and engage in infection control practices. Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The CDC has identified a current list of symptoms. For more resources about rights under the Americans with Disabilities Act (ADA) and how they apply to the coronavirus (COVID-19) pandemic: ADA, Disability & COVID-19 Resources (adacovid19.org) For additional information on face coverings and businesses: Face Coverings and Businesses: Balancing the ADA with Public Health During COVID-19 K.9. This website is a collaboration of the ten regional ADA Centers in the ADA National Network, funded by the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR). If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations? (3/18/20). Yes. As it relates to employment, Title I of the ADA protects the rights of both employees and job seekers. Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy. Title I of the ADA applies to private employers with 15 or more employees. 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