Loyola University Chicago School of Law, JD 2023
Despite the recent surge in COVID-19 cases, many Americans are still returning to the office. Kastle Systems, a large security services provider, reported that an average of 32.1 percent of employees across ten big cities were returning to work as of August 11, 2021. On August 23, 2021, the Food and Drug Administration (“FDA”) granted full approval to Pfizer/BioNTech’s COVID-19 vaccine. Polls have shown that the FDA approval will lead to an increase in vaccinations. While many people are not going back to the office, most Americans do have plans to return to work. As a result, employers are working to create return-to-work plans, while employees are left wondering about the extent of their rights. The Americans with Disabilities Act (“ADA”) covers employers with 15 or more employees, including government employers, agencies, and labor organizations. The ADA imposes restrictions on the amount and type of medical information that an employer may obtain from an employee or applicant in order to prevent discrimination on the basis of a disability. The ADA has been dissected to better understand the regulations that govern the return to the workplace.
Before welcoming staff back into the office, experts have advised employers to create extensive COVID-19 policies and procedures, detailing exposure reporting, testing, vaccination records, and mitigation. Further, employers must consider the concerns of employees who have health conditions that put them at a greater risk from COVID-19. There have also been questions about the legality of employers requesting vaccine records. Ultimately, establishing guidelines that navigate the complex regulations surrounding COVID-19 will ease the transition and promote workplace safety. The United States Equal Employment Opportunity Commission (“EEOC”) released materials to guide employers in maintaining regulatory compliance. In addition, the EEOC released information for employees to understand both the latitude and limitations of their employers in creating return-to-work plans.
The ADA and the COVID-19 response
The ADA allows for mandatory employee medical tests only when the medical test is “job-related and consistent with business necessity.” Therefore, as this applies to the COVID-19 pandemic, employers may require COVID-19 testing, temperature checks, or answers to symptom or travel questionnaires. Any employee diagnosed with COVID-19 poses a direct threat to the health of the office. The standard for what constitutes a direct threat is based on the best medical evidence provided by the Center for Disease Control (“CDC”) or other public health authorities.
If an employee has concerns about returning to work based on their increased risk of COVID-19, the ADA may require certain reasonable accommodations. This could include continued work from home. Further, if an employee calls in sick, the employer is permitted to ask questions about whether they have had or been tested for COVID-19 in order to ensure a safe and healthy workplace. The employer may ask employees who work on-site whether they have been diagnosed or are experiencing symptoms of COVID-19. Employers are advised to enact policies that apply to all employees. If an employer only asks a particular employee about whether the individual has COVID-19, the employer must have objective evidence to reasonably believe that the employee has the disease. Employers cannot inquire about family member health information, but they can ask if the employee has had contact with anyone diagnosed with COVID-19 or experiencing COVID-19 symptoms. If an employee is teleworking and does not physically enter the workplace, employers generally should not inquire about testing or COVID-19 symptoms unless the employee is planning to return to the office.
The ADA and the COVID-19 vaccine
To ease the transition back to the office, many employers hope for their entire staff to become vaccinated. Since COVID-19 vaccinations have been available, 367 million doses have been administered. As of August 27, 2021, providers are administering approximately 886,000 doses per day on average. Employers may request or even require COVID-19 vaccinations as long as their policies comply with the ADA and other employment laws. Further, employers must consider reasonable accommodations for employees with objections based on disability or religious reasons. If a vaccination requirement prevents an employee from returning to the workplace because of a disability, the employer must show that the unvaccinated employee poses a direct threat to the rest of the office.
Under the ADA, requesting proof of receipt of a COVID-19 vaccination is lawful because it is not likely to prompt disability-related information. Thus, the EEOC announced that employers may inquire about vaccination status. Further, employers may mandate COVID-19 vaccinations for all their employees. In the case of a vaccine mandate, some employees may seek an accommodation. Common accommodations include those based on a medical reason or religious belief. However, employees may also generally reject to the vaccine, which does not require an accommodation and puts employers in a difficult position in terms of their labor force. Thus, employers may choose to incentivize employees rather than instituting a requirement.
The ADA and the long-term effects of COVID-19
Most people that are diagnosed with COVID-19 experience a mild case and get better within a few weeks. However, some individuals, even those who had a mild case, continue to experience COVID-19 related symptoms for several months. This extended condition is known as “long COVID.” As the prevalence of this condition has increased, the Department of Health and Human Services and the Civil Rights Division of the Department of Justice have teamed up to provide guidance related to the ADA. Under Titles II and III of the ADA, long COVID can be considered a disability. Long COVID can consist of both a physical and mental impairment, such as lung damage, kidney damage, heart damage, brain fog, and prolonged emotional and mental health conditions.
Those with long COVID are entitled to the same protections, resources, and accommodations as any other person with a disability under the ADA. Thus, if an employee requests accommodations, the employer must provide an effective accommodation, but like in the case of all accommodations, employers are not required to remove essential job functions, lower work standards, provide personal items, or provide any accommodation that creates an undue hardship for the employer.
As we continue to navigate the COVID-19 pandemic and increasing trend to return to work, the ADA will be at the forefront of every human resource officer’s mind in terms of employer and employee rights. Maintaining compliance will require a delicate balance between workplace safety and health while also considering employee accommodations. Moreover, with recent reports of labor shortages, employers will have to assess their risks as they evaluate their business goals and determine whether a vaccination mandate serves their best interests.