Returning to Work in a Pandemic:  ADA Concerns

Returning to Work in a Pandemic: ADA Concerns

As offices reopen, many people have real concerns about COVID-19 and how it affects the workplace.  The EEOC’s Technical Assistance Questions and Answer on what you should know about COVID-19 and various EEO laws is a great resource for these questions. The EEOC updates this guidance regularly, but the most current version is at:

One set of concerns deals with people afraid to return to work.  A person might have health issues making that person vulnerable to COVID-19.  Or the person may live with another person at risk due to age or underlying health issues.  The employee fears going to work and possibly bringing home germs that expose the family member to illness.

Many employees are asking what happens if they refuse to return to work because of this fear. Usually, the employee won’t have much protection if the employee refuses to return to work due to a generalized fear.  However, sometimes, the ADA may provide relief.

If an employee’s disability puts the employee at a higher risk from COVID-19, the employee may ask for a reasonable accommodation that would allow the employee to perform the job duties.  The catch is what is a “reasonable accommodation” and whether the requested accommodation creates an undue hardship for the employer.

For example, if the employee has a job that can be performed remotely, the employee could request permission to continue to work remotely even after other employees have returned to the office.  The employee must have an underlying disability, though, not just a generalized fear of exposure to COVID-19 before the employee would be eligible for a reasonable accommodation.  So, just because an employee is over age 65 or is pregnant, that alone would not be entitled to an ADA accommodation without some other disability. Also, an employee who fears exposing a family member at higher risk of severe illness from COVID-19 due to an underlying medical condition may not have accommodation under the ADA. 

That does not mean that an employee with these concerns should not ask for such an accommodation.  It just means that an employer is not required by the ADA to grant the accommodation.  Some employers might still be happy to work with the employee to address that concern. 

If the employee cannot get the accommodation of working remotely, the employee should explore other kinds of reasonable accommodations that might minimize the risk of exposure to COVID-19.  This can include getting permission to wear a mask or being allowed to work in a space appropriately distanced from coworkers. It might include asking for plexiglass shields to be installed between cube spaces. The website is a good resource for workplace accommodations.

An employee can also consider whether the employee may have Emergency Paid Sick Leave or Emergency FMLA leave under the Families First Coronavirus Response Act.  However, those provisions only apply to companies with fewer than 500 employees, so many employees are not eligible for those benefits.

The laws and regulations are changing frequently. If you have questions, we can help.


Families First Coronavirus Response Act

Families First Coronavirus Response Act

What you need to know about the Families First Coronavirus Response Act

In response to the national Covid-19 or “coronavirus” emergency, Congress recently passed the Families First Coronavirus Response Act. For employees, there are two key parts to this statute.The first creates an emergency expansion of the Family & Medical Leave Act and the second pertains to paid sick time during the emergency. These two laws will become effective on April 2, 2020. I discuss them in more detail below.

Emergency Family and Medical Leave Act

This amends FMLA from April 2, 2020 to December 23, 2020 for an employee who has a qualifying need related to a public health emergency.

  • A “qualified need related to a public health emergency” means that the employee in unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed or the child care provider of such son or daughter is unavailable due to a public health emergency.
  • A “public health emergency” means an emergency with respect to COVID-19 declared by Federal, State or local authority.

To be eligible, the employee must have worked for a company with fewer than 500 employees for at least 30 days. For the first 10 days of leave, leave is unpaid.  After that, the employer shall provide paid leave at two-thirds of the employees pay rate. However, in no event shall such paid leave exceed $200 per day or $10,000 in the aggregate.

An employee who needs to take such leave shall provide such notice of the need for leave as is practicable. An employee who takes this emergency FMLA may be eligible to be restored to his or her position.  However, the job restoration requirements have caveats.

Companies with less than 50 employees can seek an exemption from the Department of Labor for all of these requirements.

Emergency Paid Sick Leave Act

Under this new law, an employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:

  • the employee is subject to a Federal, State or local quarantine or isolation order related to Covid-19;
  • the employee has been advised by a health care provider to self-quarantine due to concerns related to Covid-19;
  • the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • the employee is caring for an individual who is subject to an order as described in subparagraphs 1 or has been advised as described in subparagraph 2;
  • the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable due to COVID-19 precautions;
  • the employee is experiencing any other substantially similar condition specified by the Secretary of HHS in consultation with the Secretary of the Treasurer and the Secretary of Labor.

This new law applies to companies who are engaged in any industry affecting commerce that employ less than 500 people.

Hours of Paid Sick Leave

A full-time employee will receive to 80 hours of paid sick leave and a part-time employee get a number of hours equal to average that the employees works over 2 weeks. This paid sick leave shall be available for immediate use.

Protection from Retaliation

An employer cannot discharge, discipline, or in any other manner discriminate against any employee who (1) takes leave in accordance with this act or (2) has filed any complaint or instituted any proceeding related to this act. If the employer does so, there damage and penalties provisions of the FLSA kick in and give the employee a claim against the employer.

Paid Sick Time

The amount of paid sick leave will vary depending on the reason for the sick leave.  If it is reasons (1), (2) or (3), the employee will get paid the regular rate of pay except that the pay shall not exceed $511 per day and $5,110 total. 

If the employee is using the paid sick leave for a reason described in (4), (5), or (6),  then the employee will be paid 2/3 of the employee’s rate of pay and not more than $200 per day and $2000 total.

Not later than 15 days after the enactment of this Act, Secretary of Labor shall issue guidelines to assist employers in calculating the amount of paid sick time.

After the first workday an employee receives paid sick time, an employer may require the employee to follow such reasonable notice procedures in order to continue receiving such paid sick time.


These laws are new, and they are tricky.  Companies are just now trying to figure out how to comply with these laws and employees are trying to figure out their rights.

If you have questions about your rights, please contact us.

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