Navigating ADA Issues in the Time of COVID-19: Four Situations Employers Should Be Prepared For

We have been counseling employers throughout the COVID-19 pandemic and have encountered several common scenarios.  Many of the most frequently asked questions are addressed in our Employer FAQs.  This post provides additional information on the interaction between various pandemic-related issues and the Americans with Disabilities Act (“ADA”).

1. An employee known to be suffering from a mental health condition just told us that the COVID-19 situation is “too much” for them right now and has asked to go home.

While normal stress (including the additional stress we all feel during this pandemic) is not a disability under the ADA, anxiety disorders can constitute disabilities.  If an employee’s known medical condition prevents him from performing his essential job functions, it should be treated like any other ADA issue.  You should engage in the ADA interactive process (including requesting medical documentation if needed; see question 4 below) and determine what medical condition prevents the employee from coming to work and whether there are any accommodations that would enable him to do so (accommodation ideas might include additional breaks, shorter shifts, a different shift, allowing the employee to wear gloves and/or a face mask, or reassignment as a last resort).  If the employee has a medical condition that prevents him from working and there are no reasonable accommodations that would enable the employee to do so, the employee should be placed on an unpaid leave of absence until the employee is able to return to work.  (The new Families First Coronavirus Response Act (“FFCRA”) does not provide for paid leave in these circumstances.)  If you are not sure whether an employee has a disability that requires accommodation, you should err on the side of caution and engage in the ADA process.

1. We are requiring all employees to wear face coverings in accordance with recent CDC guidance and several employees have said they can’t wear them due to medical conditions.

Requiring a face mask or covering is a workplace rule that can be enforced by the employer, but the requirement may need to be accommodated, just like other workplace rules, for a disabled employee.  In this case, the employees should be sent home and you should begin the ADA interactive process to find out what prevents them from wearing face coverings and whether there are any accommodations that would enable them to do so.  It is entirely possible that no accommodations will exist and you do not need to waive the requirement (just like you don’t have to waive other workplace rules for an individual with a disability, like those related to workplace safety), but you still need to go through the interactive process before making that determination.  If someone provides a legitimate medical reason for not wearing a face covering and you determine that there are no accommodations that would enable to employee to do so, the employee should be placed on an unpaid leave of absence until face coverings are no longer required.  The same analysis should be performed for other types of temporarily required equipment or clothing, such as latex gloves.  Again, this type of leave is not covered by the FFCRA and would be unpaid.

1. We have several employees in the CDC’s “high-risk” category. Are there any additional accommodations we need to provide them during this time?   

If an employee has a disability that places her at higher risk and she requests a temporary accommodation during the COVID-19 crisis, you need to treat the request like you would any other ADA accommodation request.  Some states have started affirmatively requiring employers to take extra measures to protect employees considered to be at higher risk, including Washington, as we recently discussed here.  Accommodations might include additional protections to limit contact with others, such as one-way hallways or aisles and using plexiglass, tables, or other barriers to limit contact, or temporarily assigning the employee to a different position or allowing her to telecommute.  You should also assess whether the employee is eligible for paid leave under FFCRA (see our FFCRA Flowchart and FFCRA Leave Request Form.)

Finally, employers need to tread carefully and not assume that an employee is high risk or needs an accommodation.  You should not force anyone to accept an accommodation such as reassignment or leave if the employee has not requested an accommodation.  It is perfectly fine to initiate the conversation about need for an accommodation with your high-risk employees, to the extent that you know who they are.  We do not recommend that you ask employees for information about underlying health conditions that might make them high risk, but if they volunteer that information, or if you are already aware of the basis for the employee being high-risk (such as age), you can have the follow-up conversation about extra precautions.

1. Our policy is that employees must provide supporting medical documentation before we can provide an accommodation under the ADA. What should we do if an employee can’t get an appointment with their doctor right now?  

While employers have the right to request medical documentation in conjunction with a request for an accommodation under the ADA, there is no requirement that employers obtain supporting medical documentation.  When the need for accommodation is obvious and the accommodation is easy to provide, we often encourage employers to just provide the accommodation (giving someone who needs to sit down or has back pain a new chair, for example).  Given the current health care crisis, employers should be practical and flexible with regard to the information requested for ADA purposes and consider whether documentation is necessary.  Employees may not be able to access their health care provider to have the provider fill out ADA paperwork, or may simply not be willing to put themselves at risk of exposure by visiting their health care provider.  Explore alternatives such as directly asking the employee for information about their impairment, limitations, and need for accommodations; accepting information from a past medical visit or telemedicine consult; or simply approving the accommodation without obtaining formal disability-related medical documentation at this time.

If you have any questions or need help navigating ADA issues (COVID-19 related or not!), please contact us.  ADA issues can be challenging in the best of circumstances, but they are some of our favorite legal issues to work through.