Navigating The Thin Line Between Employee Rights And Safety In The COVID-19 Era

Introduction:

During the 2020 Coronavirus crisis, it is more important than ever to make sure that employees are able to continue to work safely, and without risk to other employees. The Americans with Disabilities Act (“ADA” or the “Act”) protects applicants and employees from discrimination based on physical or mental disability, and continues to apply during the COVID-19 pandemic. The prohibition against discrimination based on disability also prevents an employer from “regarding as” disabled an applicant or employee because of a perception that the person has limitations, which are not based on objective facts. The ADA regulates and limits the circumstances under which an employer can request medical examinations or make medical inquiries about health conditions. When a disability is identified, an employer has a duty to investigate whether a reasonable accommodation would allow the individual to perform his or essential job duties.  This article explains the basic concepts of when and under what conditions an employer can require medical testing, inquire about the health of an employee, and require fitness-for-duty assessments, and how these principles are applied to allow employers to take measures to prevent the spread of COVID-19 (the “Virus”) in the workplace.

ADA Rules for Medical Exams and Medical Inquiries:

Title I of the ADA prohibits employers and state and local governments from discriminating against qualified individuals with physical or mental disabilities on the basis of those disabilities. 42 U.S.C. §12102. An employer’s ability to request that an employee submit to a medical examination or respond to questions about his or her health condition is limited to specific situations. Prior to employment, an employer may require a medical examination as a condition of employment after it makes a “bona fide” job offer, as long as all similarly situated applicants are required to take the same exam. 42 U.S.C. §12112(d)(1)(2) & (3). During employment, an employer is permitted to request a medical exam or to conduct a medical inquiry only if it is “job-related and consistent with business necessity.” 42 U.S.C. §12112(d)(4)(A). For example, a firefighter may be asked to submit to medical tests and respond to questions designed to make sure that he or she can perform the physical and emotional demands of the job.  

To prove ADA discrimination based on an improper medical exam or inquiry, an employee does not need to show that he or she has a disability, only that the employer lacked a reasonable basis to request the exam or make the medical-related inquiry. Burns v. Nielsen, 456 F. Supp.3d 807, 819 (W. D. Tex. 2020)(questions about medications taken for migraines and back pain qualified as medical inquiry). Unsubstantiated requests for medical examinations or responses to questions about one’s health condition may also support discrimination based on a “regarded as” standard when individuals are treated as having limitations that they do not actually have, but which the employer assumes based on bias. See 42 U.S.C. §12102(3); Burns, 456 F. Supp.3d at 826; Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 230 (5th Cir. 2015)(“regarded as” disability discrimination occurs when an employer incorrectly perceives an employee as having a disability that he does not have, and makes employment decisions based on that assumption).  

a. What is a medical exam?

The Equal Employment Opportunity Commission (“EEOC”) defines a “medical exam” as procedures or tests that seek information about individuals’ physical or mental health or impairments. Employment tests that tend to screen out those with physical or mental disability are prohibited unless the employer can show that it is job-related and consistent with business necessity. 42 U.S.C. §12112(d)(4), (6). Such tests generally require a healthcare professional to administer and interpret them, and are typically conducted in a medical setting using medical equipment. Examples of tests that are not considered medical exams are psychological tests to determine personality traits that may predict an employee’s fit for a particular job. 

b. What is a disability inquiry?

Questions designed to elicit information concerning an employee’s physical or mental disability, as opposed to inquiring about whether the employee can perform the essential functions of the position with or without a reasonable accommodation. For example, an employer cannot assume that following an employee’s involvement in an automobile accident, the employee will be unable to perform her job duties and ask for a fitness-for-duty certification. An employer may ask questions concerning the employee’s fitness for duty only after obtaining objective evidence that a problem exists. 

Business Necessity and Direct Threat Exception:

The ADA prohibits employers from excluding individuals from the workplace for health and safety reasons unless the decision is based on objective evidence that supports the position that the decision is “job-related” based on “business necessity.” A disability-related inquiry may meet this standard when the employer, based upon objective evidence, has a reasonable belief that: (1) the employee’s ability to perform the essential job functions is impaired due to a medical condition; or (2) to allow the employee to perform the essential job functions will pose a “direct threat” to themselves or others. Burns, 456 F. Supp.3d at *21. When evaluating whether an employee can perform his or her essential duties safely when few facts are known, an employer may ask questions about how the employee is feeling and whether she feels able to perform certain job functions such as lifting, climbing or standing.  Those questions may reveal facts that support the employee’s inability to perform one or more functions safely. 

a. Examples of Questions that Can be Asked.

All managers and supervisors should be trained on the types of questions that may be asked following an employee’s return to work after injury or illness. Managers and supervisors may ask:

  • How the employee feels and if he is able to perform his job today.
  • Is he taking any medications (prescription or over-the-counter) that might prevent him from doing his job safely.
  • Does he have any restrictions as to what he is able to do as it relates to his current job.
  • If, based on his answers, there is any question that he can perform the job safely, then ask him to have his doctor complete paperwork to evaluate whether a reasonable accommodation might be available.
  • If, however, the employee states that he feels able to perform the job, the manager cannot override that decision as it could be regarding him as disabled in a manner in which he is not (unless evidence of safety issues exist by observation or reports from others).
  • As long as done for all similarly situated employees, an employer may request copy of the hospital or doctor’s note to verify the reason for an absence. The note might contain some helpful information as to whether he had additional restrictions.

Reasonable Accommodations:

The ADA requires employers to provide reasonable accommodations to applicants and employees to allow them to perform their essential job duties, unless to do so would prevent an undue hardship, often based on financial considerations. In that instance, an employer may request that an employee provide documentation from a healthcare provider describing the nature of the illness, its duration and whether there is any accommodation that would allow the employee to perform her essential job functions. The employee should be given a copy of an accurate job description to give to the provider along with the ADA Questionnaire, so that the provider can accurately assess the situation and identify modifications that might be appropriate.

Fitness for Duty Requests:

Many employers often request that employees provide a “fitness-for-duty” releases from medical professional before they are allowed to return to the workplace after an injury, accident or illness. As with other types of medical inquiries, an employer may only ask for a “fitness-for-duty” certification to make sure that the employee is able to safely perform his or her essential job functions, with or without a reasonable accommodation. Again, this requires objective evidence that the employee may not be able to perform his or her essential duties safely.  For example, in EEOC v. M & T Bank Corp., No. 7:17-CV-05077-KMK (N.Y. 2017), a plaintiff filed suit alleging that the employer kept employees on leave and insisted on a full duty release, instead of giving reasonable accommodations, in violation of the ADA. The plaintiffs claimed that the employer: (1) regarded them as disabled without inquiring as to whether they could perform the essential duties of their job with or without a reasonable accommodation; and (2) had a policy of keeping employees out of work until they could produce a full duty release without restrictions from their healthcare provider. One employee had a broken foot that limited walking, but could have performed her duties by using a walker boot at work, but was not allowed to work.

The court found the practices to be unlawful under the ADA because the company had a duty to provide a reasonable accommodation where appropriate rather than request full duty releases. 42 U.S.C.  §12112(b)(5) & (b)(6). The court found it a violation of the ADA to keep such individuals on leave pending a 100% fitness for duty release instead of inquiring about their ability to perform the essential job functions, and engaging in the interactive process to determine if a reasonable accommodation would have allowed them to perform those duties.

COVID19 Considerations and Direct Threat:

Under the ADA, having a contagious disease such as HIV, does not mean that an employee is a “direct threat.” This is because the risk of transmission is not considered to be high under ordinary circumstances. The EEOC has determined, however, that the COVID-19 pandemic is so severe and presents a high risk of infection transmission that the disease meets the “direct threat” standard. See EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, March 21, 2020 at: https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act. Therefore, employers may assume that the risk of having someone enter the workplace with COVID-19 poses a “direct threat” to other employees and act accordingly. The EEOC recently issued additional Technical Assistance Questions and Answers. See EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, December 16, 2020 at: www.eeoc.gov/coronavirus. Where applicable, some of those concepts have been incorporated below.

a. Medical Tests and Inquiries Allowed.

Employers may conduct non-invasive medical tests such as routine temperature checks, and may request that employees get tested for the Virus or administer COIVD-19 tests to employees before they are allowed to be in the workplace. Employers should make sure that any testing methods used to detect the Virus are accurate and reliable. Under the new EEOC guidance, however, tests to determine the presence of antibodies are not permitted. It is also acceptable to make COVID-19 related medical inquiries as long as the process is followed equally for all similarly situated employees. For example, employers may ask that employees complete questionnaires designed to determine whether they have been exposed to COVID-19, and require that employees immediately report any potential exposure the Virus or any flu-like symptoms, including cough, fever, shortness of breath, headache or other symptoms that have been identified by the Centers for Disease Control (“CDC”) as indicative of possible COVID-19 infection. As required by the ADA, all tests and test results obtained are considered confidential medical records.  

b. Employees Sick or Exposed Employees.

If any employee appears visibly sick during the pandemic, an employer may send the employee home without confirming what caused the illness. Employers should follow the most recent Centers for Disease Control (“CDC”) guidelines for evaluating when the employee can return to work. See www.cdc.gov for specific guidelines. Following the CDC guidelines will also insure that the employer is complying with the Occupational Safety and Health Administration’s requirement that employers have a general duty to provide a safe workplace free of known hazards with regard proper procedures during the pandemic. See www.osha.gov for more information. An employer may not, however, ask an employee who physically comes into the office to disclose whether he or she has a family member who has COVID-19 or systems consistent with the disease. The EEOC has advised that those questions are prohibited by the Genetic Information Nondiscrimination Act of 2008 (“GINA”), 42 U.S.C. § 2000ff et seq., which limits questions that may be asked concerning family members. Alternatively, employers may inquire as to whether the employee has been exposed to the Virus or is experiencing symptoms consistent with having COVID-19.   

c. Return to Duty Releases Permitted for COVID-19 Related Absences.

The EEOC also sanctions an employer’s request for a doctor’s note or other certification of fitness to return to work following a COVID-19 related absence. An employer should not request that the employee produce a negative COVID-19 test due to the difficulty of obtaining such tests and the delay in getting results. Instead, have the employee obtain a fitness-for-duty certification from a healthcare provider. Alternatively, an employer may use the CDC guidelines for determining when it is safe for an employee to return to work without requiring a certification.

Telework as a Reasonable Accommodation:

The EEOC recommends Teleworking as a reasonable accommodation for employees who cannot come to the office due to a COVID-19 related reason or being at high risk of developing the illness, and as an effective infection reduction strategy in general. Employees who are at high risk for severe disease if they develop COVID-19 may request Teleworking as a reasonable accommodation. Teleworking should be allowed unless the employee’s ability to work from home given the particular job duties or for other specific reasons make it not feasible. Employers should make sure that such employees complete timesheets to accurately keep track of all hours worked. 

When an employer allows employees to Telework for the sole purpose of stopping the spread of the Virus in the workplace, and later recalls employees back to the office when it is considered safe, those employees do not automatically have the right to continue to Telework. The employer must, however, engage in the ADA’s “interactive process” with the employee to determine whether there is a disability-related reason for continued Telework, and whether such an accommodation is reasonable given the circumstances of the particular job and the employee’s ability to work from home. Reasons for a request for continued Telework include that fact that the employee has health conditions that put him or her at particular risk for severe complications from COVID-19. The fact that the employee lives with a family member who may be at risk for complications from the Virus does not constitute a reason for an ADA accommodation.   

The information contained in this article is not designed to address specific situations. If you have questions concerning this topic, you may contact me directly or consult with other legal counsel for advice on fact specific matters.

Robin Foret is a Managing Member at Seltzer, Chadwick, Soefje & Ladik, PLLC, and is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization. She is a frequent speaker and writer on employment law compliance topics. She also provides training for companies to assist them comply with federal and state employment laws. She can be reached at rforet@realclearcounsel.com or by telephone at (469) 626-5358. You may also visit the website for more information about our law firm’s services at www.realclearcounsel.com.

One comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s