Employers Need to be Mindful of the ADA and Potential COVID-related Discrimination Employers Need to be Mindful of the ADA and Potential COVID-related Discrimination

The Equal Employment Opportunity Commission (EEOC) summed it up best in a recent press release summarizing two separate Texas lawsuits involving alleged employer violations of the Americans with Disabilities Act (ADA) related to COVID-related discrimination:

• The employers in this case took actions in response to the COVID-19 pandemic that had the effect of discriminating against disabled employees in violation of the ADA.  Employees cannot be refused the opportunity to work just because their employer believes it is protecting them from illness. Absent a direct threat to the safety of themselves or others, employers cannot deny employment opportunities based on disability.
• Employees with disabilities should not be subjected to harassment, threats and intimidation just because they asked for a reasonable accommodation. That violates the ADA.

In the first case, a pharmacy, with a policy of prohibiting masks, refused to allow an asthmatic employee to wear masks in the workplace.  Instead of receiving a disability accommodation, the employee was harassed and mocked and was even sent home on two separate occasions. The other employer, a coffeehouse, denied two disabled employees reasonable accommodation under the ADA.  Although the employees were available and wanting to work, they were told to stay home until they could get vaccinated.  The workers were eventually terminated. The EEOC has filed suit against both employers requesting back pay, compensatory and punitive damages and injunctive relief.

The EEOC has a section on their website devoted to pandemic-related inquiries.  In particular, the agency has provided the following useful general guidance:

The EEOC laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety. This includes evolving guidance found in the CDC publication, “Interim Public Health Recommendations for Fully Vaccinated People.” Many common workplace inquiries about the COVID-19 pandemic are addressed in the CDC publication “General Business Frequently Asked Questions.”

The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version]) ("Pandemic Preparedness"), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic.

If you want to make sure your workplace is in full compliance with the ADA and other government guidelines, particularly regarding any issues related to the pandemic, contact McKague Rosasco LLP.