Until a vaccine is distributed widely enough to reduce the ongoing spread of the COVID-19 pandemic, employers will almost certainly have to continue in their efforts to balance the efficiency of the workplace with employee safety. Unsurprisingly, employers will likely have to maintain compliance with the Americans with Disabilities Act (the “ADA”), as it pertains to employees affected by the virus, for the foreseeable future.
First, businesses must assess whether or not they are required to comply with the ADA. Regardless of the status of the ongoing pandemic, the threshold of employees an employer must employ before triggering compliance with the ADA remains at fifteen (15) for private businesses. Therefore, smaller employers may avoid these issues. Mid-sized and larger employers, however, will need to ensure that they remain in compliance.
Designate A COVID-19 Policy Point of Contact
Employers must be cognizant of the fact that the flurry of prior legislation spurred by the COVID-19 pandemic did not meaningfully affect the ADA. The provisions of the law remain in place and it is incumbent upon employers to adapt to new, fluid situations. Employers must still recognize when an employee requests an accommodation. More than likely, the most common accommodation request during the COVID-19 pandemic will be requested to work remotely. As a matter of best practice, employers should designate a single point of contact to address employee requests (including requests for remote work) and mandate that all employees direct their requests to the designated individual. Designating a single point of contact defends against claims that an employee made a request to a different individual (i.e. a mid-level supervisor) who never passed along the request or began the interactive process.
Carefully Review COVID-19 Accommodation Requests
Once the interactive process begins, and if it is determined that the employee’s position and job duties are such that the essential functions of the position can be performed remotely, the employer may request medical information from the employee. As part of the interactive process, the employer should ascertain the medical rationale behind the request and ascertain if the alleged disability is such that the employee can be accommodated within the workplace, or if the level of accommodation requires remote work. Presumably, many employers have already undertaken measures to ensure social distancing such as plexiglass barriers or the spacing out of employee work stations. Employers are encouraged to be flexible in making employee accommodations. Regardless of the extent of the pandemic, employers are reminded that they are not required to provide particular accommodations if said accommodations pose an undue hardship, defined as “significant difficulty or expense.”
Implement Safety Protocols
In normal circumstances, the ADA restricts the type and amount of medical information an employer may obtain from an employee. These rules are relaxed during a serious emergency such as the COVID-19 pandemic when employee illness might present a direct threat to the workplace. During the pendency of the pandemic, employers may inquire as to whether or not employees are experiencing COVID symptoms in order to ensure that their workplaces are made safe for other employees. Further, the ADA does not restrict an employer’s ability to require employees who have symptoms of COVID-19 to remain away from the workplace while they are ill.
Another area where an employer may be required to engage in a type of interactive process with employees is the wearing of masks and other personal protective equipment (PPE). Employers must balance several competing interests, including compliance with state and local mandates on mask-wearing, the interests if individuals who are unable to wear masks or other forms of PPE due to medical restrictions, and the interests of individuals who may be at higher risk of infection and should only be exposed to masked individuals. Employers must be prepared to take all reasonable steps to accommodate the interests of both parties. For example, the jurisdiction in which the employer is located is under a mask mandate, but the mandate permits individuals to not comply if they have medical issues that would prevent them from wearing a mask, the employer should consider alternative accommodations for that employee, including moving the employee’s workspace or permitting remote work. If neither of these options are feasible, and the mask-less employee frequently works around other employees or comes into contact with the general public, the employer should work with the employee to devise an alternative solution, such as wearing a face shield or some other covering that does not exacerbate the medical condition.
Continue to Avoid Discriminatory Practices
Finally, employers must ensure that they are not accidentally engaging in disparate treatment of their employees as a result of the implementation of COVID-related workplace policies, even if those actions are taken with the best interest of the employees in mind. Employers who return younger or healthier employees to the office first may face claims under the ADA or age discrimination statutes unless those employees who continue to work remotely requested the accommodation.
Adapt to the Pandemic and Ensure Your Legal Compliance with MBM Law
In summation, the underlying framework of the ADA has not been changed in the months since the COVID pandemic started. Rather, employers are required to adapt the circumstances of the pandemic to the already existing legal structure and ensure their compliance. Maiello Brungo & Maiello’s Human Resources Compliance & Strategic Counseling team can help employers ensure compliance with the ADA throughout the ongoing pandemic. Contact us today at 412-242-4400 or [email protected].