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: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
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 www.askjan.org 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.