It has been a while since I blogged on the EEOC running Covid-19 guidance. The EEOC just came out with some more updates (it very well could be the last one for a while considering Covid-19 is now endemic), so I thought I would return to it. The blog entry is only going to focus on the updates that they made on May 15, 2023. You can find the full guidance here. As I did the last time I did this, I will list out the updated sections of the guidance and then put my thoughts underneath that section. So, the blog entry is not divided into our typical categories. There are some 31 updates from the last time they updated the guidance document.
- Disability-Related Inquiries and Medical Exams
The ADA has restrictions on when and how much medical information an employer may obtain from any applicant or employee.
Prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category. For more information on the timing of disability-related inquiries and medical examinations for applicants, see Section C.
Under the ADA (which is applicable to the Federal sector through the Rehabilitation Act of 1973), once an employee begins work, any disability-related inquiries or medical exams must be “job-related and consistent with business necessity.” One way inquiries and medical examinations meet this “business necessity” standard is if they are necessary to determine whether a specific employee has a medical condition that would pose a “direct threat” to health or safety (a significant risk of substantial harm to self or others that cannot be addressed with reasonable accommodation). For more information on reasonable accommodation, see Section D. Where met, the “business necessity” standard allows for consideration of whether a person may have COVID-19, and thus might pose a “direct threat.” For information on disability-related questions and COVID-19 vaccinations, see K.7.– K.9.
CDC has updated its guidance over the course of the pandemic and may continue to do so as the pandemic evolves and as CDC acquires more information about the virus and different variants. The ADA “business necessity” standard requires that employers utilize the most current medical and public health information to determine what inquiries/medical examinations are appropriate.
A.1. If an employee calls in sick, how much information may an employer request from the employee in order to protect the rest of its workforce and others (e.g., customers) from infection with COVID-19? (Updated 5/15/23)
If an employee calls in sick, an employer may ask whether the employee has COVID-19 or common symptoms of COVID-19 as identified by CDC. If the employee has COVID-19 or symptoms of the disease, the employer may follow any CDC-recommended period of isolation with respect to when an employee may return to the workplace or otherwise work in close proximity to others. See A.4., which also addresses following a CDC-recommended period of isolation. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
My thoughts: the EEOC references the CDC recommended period of isolation and also notes that employers have to maintain all information about employee illness as a confidential medical record in compliance with the ADA. Keep in mind, that CDC guidances can be very fluid.
A.2. Where can employers obtain current information on symptoms associated with COVID-19? (Updated 5/15/23)
The list of symptoms commonly associated with the disease may change as public health authorities and doctors learn more and as different variants emerge . Employers should rely on CDC for guidance on symptoms currently associated with the disease. These sources may guide employers when choosing questions to ask employees. See also A.8., addressing the ability of an employer to ask employees if they have been diagnosed with or tested for COVID-19.
My thoughts: CDC guidances can be very fluid and not always easy to understand. Employers may want to consider having their own infectious disease specialist on board when possible.
A.3. When may an ADA-covered employer take the body temperature of employees in an effort to screen for COVID-19? (Updated 5/15/23)
Measuring an employee’s body temperature is a medical examination. See A.6. for a discussion of the type of assessment an employer must do to justify requiring a medical examination (or requiring employees to answer disability-related questions) under the ADA’s “business necessity” standard. Employers may wish to consult CDC guidance or guidance from other public health authorities to determine if an elevated temperature is a possible indication of infection. If it is, then taking the temperature of employees will meet the ADA standard.
A.4. Does the ADA allow employers to require employees to stay home if they have COVID-19 or symptoms of COVID-19? (Updated 5/15/23)
Employers should consult current CDC guidance to clarify when and for how long it recommends someone with COVID-19, or symptoms of COVID-19 should stay home. The ADA does not prevent employers from following CDC advice. See also A.1., which addresses the information an employer may request when an employee calls in sick.
My thoughts: CDC guidances can be very fluid and not always easy to understand. Employers may want to consider having their own infectious disease specialist on board when possible.
A.8. May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (Updated 5/15/23)
Yes. Employers may ask all employees who will be physically entering the workplace (or otherwise working in close proximity with others, such as clients) if they have COVID-19 or common symptoms associated with COVID-19 as identified by CDC. Employers also may ask if these employees have been tested for COVID-19 (and if so, ask about the result). An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace if consistent with CDC-recommended isolation protocols. See also A.2.
My thoughts: Covid-19 is now endemic. So on a practical level, I am not sure how many employers are actually doing this or what is the utility of doing it. An employer might want to check with an infectious disease specialist if this is something the employer is thinking of doing.
A.9. May a manager require that a particular employee have a temperature reading or undergo COVID-19 viral testing, as opposed to imposing these medical examinations on all employees? (Updated 5/15/23)
Whether an employer wishes to require a particular employee, or all employees, to have a temperature reading or to undergo COVID-19 viral testing, the ADA requires that the employer meet the “business necessity” standard because these are medical examinations. Therefore, it is important for the employer to consider why it wishes to require a medical examination. The ADA does not prevent employers from following recommendations by CDC regarding whether, when, and for whom testing (or other medical screening) is appropriate, because following CDC recommendations will meet the ADA “business necessity” standard. For a discussion of screening testing for employees generally, see A.6. For a discussion of taking temperature as a screening mechanism, see A.3. Employers should not engage in unlawful disparate treatment based on protected characteristics in deciding who is subject to medical examinations.
My thoughts: the key take away here is that a temperature reading or Covid-19 viral testing is a medical exam and must meet the business necessity standard (we discussed business necessity many times, including here), before being performed. Also as mentioned above, CDC guidelines can be very fluid.
A.10. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (Updated 5/15/23)
No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. For example, GINA prohibits employers from asking employees to provide their family members’ medical examination results, including COVID-19 test results. 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. Moreover, from a public health perspective, only asking about an employee’s contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19. Employers should not engage in unlawful disparate treatment based on protected characteristics in deciding who is asked about possible exposure to persons with COVID-19.
My thoughts: as this section illustrates, the ADA is not the only law an employer needs to be thinking about. The Genetic Information Nondiscrimination Act is another such law. For that matter, the FMLA is yet another.
A.11. What may an employer do under the ADA if an employee refuses to permit the employer to take the employee’s temperature or refuses to answer questions about whether the employee has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (Updated 5/15/23)
An employer may ask employees if they have COVID-19, common symptoms of COVID-19 as identified by CDC, or have been tested for COVID-19 (and if so, ask about the result). See A.1. and A.8. An employer also may take an employee’s temperature or require a COVID-19 viral test as long as these medical examinations meet the ADA’s “business necessity” standard. See A.3., A.6., and A.9. If an employee refuses to cooperate by answering these questions or taking these medical examinations, an employer may take whatever action it deems appropriate, consistent with its applicable policies or procedures (e.g., barring an employee from physical presence in the workplace or otherwise working closely with others).
To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. For example, the employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The employer may reassure the employee that the ADA prohibits disclosure of employee medical information with limited exceptions. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.
My thoughts: providing a business necessity exists, the employer can then take any action consistent with the policies and procedures should an employee refuse the testing. A separate question is who pays for any testing because the Covid-19 emergency has now ended. If the employer wants to prevent litigation and possibly losing a case, along the lines of what we discussed here, the employer should pay for it.
A.14. When an employee returns from travel during the COVID-19 pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (Updated 5/15/23)
No. Questions about where a person traveled would not be disability-related inquiries. Employers may wish to consult current CDC guidance regarding domestic or international travel for recommendations on what precautions, if any, are advisable after returning from certain destinations. If an employer wishes to require a medical examination (e.g., requiring a COVID-19 viral test), it must meet the ADA’s “business necessity” standard. See A.6. and A.9.
My thoughts: I don’t have any concerns/thoughts with respect to this section.
- Confidentiality of Medical Information
With limited exceptions, the ADA requires employers to keep confidential any medical information they learn about any applicant or employee. Medical information includes not only a diagnosis or treatments, but also the fact that an individual has requested or is receiving a reasonable accommodation.
B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information? (Updated 5/15/23)
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. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that the employee has the disease or suspects so, or the employer’s notes or other documentation from questioning an employee about symptoms. Similarly, information about an employee having Long COVID must also be treated as confidential. For information on confidentiality and COVID-19 vaccinations, see K.4.
My thoughts: all of the employee’s medical information can be stored in a single file that has to be kept separate from the personnel file.
- Hiring and Onboarding
Under the ADA, prior to making a conditional job offer to an applicant, disability-related inquiries and medical exams are generally prohibited. They are permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category.
C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? (Updated 5/15/23)
Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
In addition, if an employer screens everyone for COVID-19 (i.e., screens all applicants, employees, contractors, and visitors because anyone potentially might have COVID-19) before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19. It is also permissible to screen a subset of applicants pre-offer if they fall into a specific category of individuals (including employees and others) that are subject to COVID-19 screening. For example, if everyone entering a particular building on campus must undergo COVID-19 screening, an employer also may subject an applicant entering this building to the same screening, even though such screening is not routinely done when entering other buildings. But note, an employer should not use this COVID-19 screening as an opportunity, pre-offer, to also ask applicants disability related questions and/or to conduct medical examinations that may only be done post-offer. For information on the ADA rules governing such inquiries and examination, see Section A.
My thoughts: the ADA has a disability related inquiries/medical examination scheme that we have talked about before, such as here. Whenever trying to figure out whether a disability related inquiry is involved, getting the help of employees with disabilities is a great idea because of their sensitivity to such questions.
- Disability and Reasonable Accommodation
Under the ADA, reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, meaning significant difficulty or expense. An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available absent undue hardship. In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.
For more information on reasonable accommodation issues that may arise when employees return to the workplace, see Section G. For more information on reasonable accommodation and pregnancy-related disabilities, see Section J. For more information on reasonable accommodation and COVID-19 vaccinations, see K.1., K.2., K.5., K.6., and K.11.
D.3. In a workplace where employees are required to telework due to the COVID-19 pandemic, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until the employee returns to the workplace when mandatory telework ends? (Updated 5/15/23)
Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.
My thoughts: activating the interactive process early is a good idea from both the employer and the employee perspective.
D.7. If there is some urgency to providing an accommodation, may an employer provide a temporary accommodation? (Updated 5/15/23)
Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” (discussed in D.5 and D.6., above) and grant the request. In addition, changes in government restrictions may affect the need for accommodations. Changes in how an employer conducts the interactive process may be necessary to suit changing circumstances based on current public health directives.
Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the temporary accommodation (for example, a specific date such as “May 30”). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a disability that puts the employee at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.
If an employee requests an extension of a temporary accommodation, the employer must consider it. The employer may take into account current circumstances, including the employee’s current disability related needs and any applicable government restrictions or public health directives).
My thoughts: you do see lots of colleges and universities provide temporary accommodations while the paperwork comes in. Stay away from requesting excessive documentation (we discussed excessive documentation here). I agree that there is nothing wrong with putting an end date on a temporary accommodation, but you want to make sure if you are ending it, that the accommodation no longer works. It is always a recipe for litigation to take away an accommodation that is working even if it should not have been granted in the first place.
D.8. May an employer invite employees to ask for reasonable accommodations they may need in the future in advance of a return to the workplace? (Updated 5/15/23)
Yes. Employers may inform the entire workforce that employees with disabilities may request accommodations in advance that they believe they may need when returning to the workplace either part-time or full-time. This is discussed in greater detail in Question G.6. 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. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.
My thoughts: as mentioned above, an early start on what accommodations might be needed is a good idea from both the employer and the employee’s perspective.
D.10. May an employer consider circumstances related to the COVID-19 pandemic when determining if a requested accommodation poses “significant difficulty” (and therefore would be an undue hardship)? (Updated 5/15/23)
An employer may consider whether current circumstances related to the COVID-19 pandemic create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. 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. If a particular accommodation poses an undue hardship due to circumstances related to the pandemic, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.
My thoughts: several years back, I heard then Commissioner Chai Feldblum speak. She mentioned that the best way to think of logistical undue hardship was in terms of fundamental alteration in the title II and title III context. I have always agreed with that approach. Lawyers are literalists, and one wonders from reading this particular section whether the EEOC is suggesting that “significant difficulty,” may not be as high of a standard as fundamental alteration. If this is indeed what the EEOC is suggesting, this is quite significant and concerning for persons with disabilities.
D.11. May an employer consider circumstances related to the COVID-19 pandemic when determining if a requested accommodation poses “significant expense” (and therefore would be an undue hardship)? (Updated 5/15/23)
Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components). Current pandemic conditions make it less likely that they would be the foundation for finding “significant expense,” although an employer may consider any pandemic-related circumstances that could be relevant at the time the employer is making an undue hardship assessment. But, consideration of any relevant pandemic-related reasons does not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account any constraints created by this pandemic. Even under pandemic-related circumstances, there may be many no-cost or very low-cost accommodations that effectively meet the employee’s disability-related needs.
My thoughts: unlike D10 possibly, EEOC is not backing off on financial undue hardship being determined based upon the entire resources of the entity. I recently saw a report, here, from the Job Accommodation Network that over 50% of reasonable accommodation costs an employer absolutely nothing and the median cost being $300. I can count on one hand the number of cases that I have seen that have said a financial undue hardship is present. For a blog entry discussing just what it means to be looking at the entire resources of the entity when it comes to financial undue hardship, see this blog entry.
D.19. What are examples of reasonable accommodations that may assist employees with Long COVID? (5/15/23)
The possible types of reasonable accommodations to address various symptoms of Long COVID vary, depending on a number of factors, including the nature of the symptoms, the job duties, and the design of the workplace. Some common reasonable accommodations include: a quiet workspace, use of noise cancelling or white noise devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath. The Job Accommodation Network has information on a variety of possible reasonable accommodations to address specific symptoms of Long COVID.
My thoughts: long Covid-19 is now a part of the guidance. With respect to any reasonable accommodation, the question should be what gets the person with a disability to the same starting line as a person without a disability. Creativity is the norm and don’t get stuck in boxes. I absolutely agree with contacting the Job Accommodation Network when needed. Also, don’t forget about the do’s and don’ts of the interactive process, which we discussed here.
D.20. As a result of the end of the COVID-19 Public Health Emergency on May 11, 2023, may employers automatically terminate reasonable accommodations that were provided due to pandemic-related circumstances? (5/15/23)
No. This emergency declaration dealt with issues involving health care coverage and access to treatment. It did not address the ADA and Rehabilitation Act requirements regarding provision of reasonable accommodation. Therefore, the end of this Public Health Emergency declaration does not automatically provide grounds to terminate reasonable accommodations that continue to be needed to address on-going pandemic-related circumstances (e.g., continued high risk to individuals with certain disabilities if they contract COVID-19). However, an employer may evaluate accommodations granted during the public health emergency and, in consultation with the employee, assess whether there continues to be a need for reasonable accommodation based on individualized circumstances. Consistent with the ADA’s “business necessity” standard, this evaluation may include a request for documentation that addresses why there may be an ongoing need for accommodation and whether alternative accommodations might meet those needs.
My thoughts: I personally like that the EEOC made this point as it points out a trap people could fall into. As mentioned previously, the EEOC is serious about a business necessity being present in order to make disability related inquiries or perform medical exams of an employee.
- Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics
E.2. Are there steps an employer should take to address possible harassment and discrimination against employees in connection with the pandemic? (Updated 5/15/23)
Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex (including sexual orientation, gender identity, and pregnancy), religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may want to provide illustrations of pandemic-related harassment for supervisors, managers, and all other employees to help them understand what actions may violate the EEO laws. For example, one illustration might show a supervisor or coworker violating the ADA/Rehabilitation Act by harassing an employee with a disability-related need to wear a mask or take other COVID-19 precautions. Another illustration might show a supervisor or coworker violating Title VII by harassing an employee who is receiving a religious accommodation to forgo mandatory vaccination. (See E.3. for an additional example of pandemic-related harassment.) Finally, an employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.
My thoughts: hostile work environment for persons with disabilities is something that actually exists. (See this blog entry for example. See also this blog entry ). One thing to be on the lookout for is harassment of people who decide to wear mask for a variety of different reasons. The best policy here is to be clear to the employees that employees are perfectly free to mask or not and the employees should respect that choice.
J.2. Is there a right to accommodation based on pregnancy during the pandemic? (6/11/20)
First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.
Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII. For information on pregnancy and COVID-19 vaccination, see K.13.
My thoughts: there are actually three federal laws now dealing with accommodating a person who is pregnant. Those laws include the ADA and the Pregnancy Discrimination Act, as mentioned above. However, we also have the Pregnant Workers Fairness Act now. It’s interesting that the EEOC ignored the Pregnant Workers Fairness Act, which we discussed here. I just read that the EEOC is supposed to come out with regulations for the Pregnant Workers Fairness Act at the end of June but is unlikely to do so. Part of the problem with the regulations, may be that the EEOC is currently split 2-2 between the political parties with one vacancy. Hopefully, the EEOC will come up with regulations. In any event, I have long said that when it comes to pregnancy, thinking like an ADA attorney dealing with reasonable accommodation requests is really good preventive law. Until regulations come out, attorneys and employers would be wise to go about their business when it comes to accommodating people who are pregnant by thinking along the lines of the ADA reasonable accommodation process. I also refer you to Robin Shea’s excellent blog entry dealing with the Pregnant Workers Fairness Act, which can be found here.
- Vaccinations – Overview, ADA, Title VII, and GINA
Note: Court decisions upholding or rejecting federal vaccination requirements do not affect any statements made in this publication regarding employer and employee rights and responsibilities under the equal employment opportunity laws with respect to employers that require COVID-19 vaccinations.
COVID-19 Vaccinations: EEO Overview
K.2. What are some examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated due to disability; religious beliefs, practices, or observance; or pregnancy? (Updated 5/15/23)
An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19 (provided testing is consistent with the ADA “business necessity” standard for medical examinations; see A.6.), be given the opportunity to telework, or finally, accept a reassignment.
Employees who choose not to be vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.
My thoughts: the only thing confusing here is that reasonable accommodations does not mean the same thing for religion as it does for people with disabilities, but the EEOC appears to be conflating the two. The Supreme Court recently heard oral argument about whether reasonable accommodations with respect to religion should mean the same thing as reasonable accommodation with respect to disability. Judging from that oral argument, it is absolutely impossible to guess how the Supreme Court will deal with that issue. It may be June before we find out. Also, the very last paragraph of this section is a bit out of date thanks to the Pregnant Workers Fairness Act that recently signed into law.
Employer Incentives For COVID-19 Voluntary Vaccinations Under ADA and GINA
ADA: Employer Incentives for Voluntary COVID-19 Vaccinations
K.16. Does the ADA limit the value of the incentive employers may offer to employees for receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)? (Updated 5/15/23)
No. If the health care provider administering a COVID-19 vaccine is not the employer or its agent the ADA does not limit the incentives (which includes both rewards and penalties) an employer may offer to encourage employees to receive a COVID-19 vaccination, or to provide confirmation of vaccination. This is because the ADA’s rules about when disability-related inquiries may be asked and medical examinations required only apply when it is the employer or its agent asking the questions or requiring the medical exam. See K.9. By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive. See K.17. Even if an employer requires employees to receive vaccination or provide confirmation of vaccination, as long as it is not required to be administered by the employer or its agent, the ADA does not limit the value of incentives offered, whether rewards or penalties.
As noted in K 4., the employer is required to keep vaccination information confidential under the ADA.
My thoughts: I don’t have any concerns with this section. Undoubtedly, this can get confusing.
COVID-19, Long COVID, and the ADA
N.1. How does the ADA define disability, and how does the definition apply to COVID-19 and Long COVID? (Updated 5/15/23)
The ADA’s three-part definition of disability applies to COVID-19 and Long COVID in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:
- “Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);
- “Record of” a Disability: The person has a history or “record of” an actual disability (such as cancer that is in remission); or
- “Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.
The definition of disability is construed broadly in favor of expansive coverage, to the maximum extent permitted by the law. Nonetheless, not every impairment will constitute a disability under the ADA. The ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability.”
COVID-19, Long COVID, and the ADA
My thoughts: while it is absolutely true that not every impairment will constitute an ADA disability under the ADA as amended, it is very rare after the amendments to the ADA, that a disability will not be found. Remember, the EEOC will tell you that most disabilities should not require extensive analysis. That said, the ADA is always about an individualized analysis.
When is COVID-19 or Long COVID an actual disability under the ADA? (Updated 5/15/23)
Applying the ADA rules stated in N.1. and depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 or Long COVID has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 or Long COVID substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances.
A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA. However, depending on the specific facts involved in a particular employee’s medical condition, an individual with COVID-19 might have an actual disability, as illustrated below.
Physical or Mental Impairment: Under the ADA, a physical impairment includes any physiological disorder or condition affecting one or more body systems. A mental impairment includes any mental or psychological disorder. COVID-19 and Long COVID are physiological conditions affecting one or more body systems. As a result, they are each a “physical or mental impairment” under the ADA.
Major Life Activities: “Major life activities” include both major bodily functions, such as respiratory, lung, or heart function, and major activities in which someone engages, such as walking or concentrating. COVID-19 or Long COVID may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In some instances, COVID-19 or Long COVID also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. An impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting. However, limitations in more than one major life activity may combine to meet the standard.
Substantially Limiting: “Substantially limits” is construed broadly and should not demand extensive analysis. COVID-19 or Long COVID need not prevent, or significantly or severely restrict, a person from performing a major life activity to be considered substantially limiting under Title I of the ADA.
The limitations from COVID-19 or Long COVID do not necessarily have to last any particular length of time to be substantially limiting. They also need not be long-term. For example, in discussing a hypothetical physical impairment resulting in a 20-pound lifting restriction that lasts or is expected to last several months, the EEOC has said that such an impairment is substantially limiting. App. to 29 C.F.R. § 1630.2(j)(1)(ix). By contrast, “[i]mpairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.” Id.
Mitigating Measures: Whether COVID-19 or Long COVID substantially limit a major life activity is determined based on how limited the individual would have been without the benefit of any mitigating measures—i.e., any medical treatment received or other step used to lessen or prevent symptoms or other negative effects of an impairment. At the same time, in determining whether COVID-19 or Long COVID substantially limits a major life activity, any negative side effects of a mitigating measure are taken into account.
Some examples of mitigating measures for COVID-19 include medication or medical devices or treatments, such as antiviral drugs, supplemental oxygen, inhaled steroids and other asthma-related medicines, breathing exercises and respiratory therapy, physical or occupational therapy, or other steps to address complications of COVID-19. Examples of mitigating measures for Long COVID include medication or treatment, respiratory therapy, physical therapy, and mental health therapy.
Episodic Conditions: Even if the symptoms related to COVID-19 or Long COVID come and go, COVID-19 or Long COVID is an actual disability if it substantially limits a major life activity when active.
My thoughts: after the amendments to the ADA, an actual disability can be a disability that doesn’t last terribly long if it is a physical or mental impairment that substantially limits a major life activity. I would be wary about getting in a box of how long the disability will last before an actual disability is found. This is especially so since Covid-19 symptoms can be severe in the short term and can last a long time or just for some time.
N.3. Is COVID-19 always an actual disability under the ADA? (12/14/21)
No. Determining whether a specific employee’s COVID-19 is an actual disability always requires an individualized assessment, and such assessments cannot be made categorically. See 29 C.F.R. § 1630.2 for further information on the ADA’s requirements relating to individualized assessment.
My thoughts: absolutely true that an individualized analysis is always required. That said, hard to believe that Covid-19 will not be an actual disability in most cases.
N.4. What are some examples of ways in which an individual with COVID-19 might or might not be substantially limited in a major life activity? How can Long COVID substantially limit a major life activity? (Updated 5/15/23)
As noted above, while COVID-19 may substantially limit a major life activity in some circumstances, someone infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to the common cold or flu that resolve in a matter of weeks—with no other consequences—will not be substantially limited in a major life activity for purposes of the ADA. Based on an individualized assessment in each instance, examples of fact patterns include:
Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:
- An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.
- An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.
- An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.
- An individual diagnosed with “Long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.
Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:
- An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.
- An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.
As noted above, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.
For information on possible services and supports for individuals with Long COVID, see the report issued by the U.S. Dept. of Health and Human Services.
“Record of” Disability
My thoughts: as mentioned above, I would be cautious about using timelines with respect to assessing whether a disability exists after the amendments to the ADA. Also, don’t forget about the record of a disability prong as well.
N.5. Can a person who has or had COVID-19 or Long COVID be an individual with a “record of” a disability? (Updated 5/15/23)
Yes, depending on the facts. A person who has or had COVID-19 or Long COVID can be an individual with a “record of” a disability if the person has “a history of, or has been misclassified as having,” 29 C.F.R. § 1630.2(k)(2) , an impairment that substantially limits one or more major life activities, based on an individualized assessment.
“Regarded As” Disability
N.6. Can a person be “regarded as” an individual with a disability if the person has COVID-19 or Long COVID, or the person’s employer mistakenly believes the person has COVID-19 or Long COVID? (Updated 5/15/23)
Yes, depending on the facts. A person is “regarded as” an individual with a disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19 or Long COVID, or the employer mistakenly believes the person has such an impairment, unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. For this definition of disability, whether the actual or perceived impairment substantially limits or is perceived to substantially limit a major life activity is irrelevant.
My thoughts: I get with the EEOC is saying about transitory and minor in this section. It is basically black letter law so to speak. However, keep in mind that we don’t know whether Covid-19 will last six months or less once a person gets Covid-19. Not everyone gets long Covid-19 but many do. Finally, keep in mind that for the regarded as exception to apply, the impairment must be BOTH transitory and minor.