COVID-19 Presents Disability Discrimination Issues

Whitman Legal Solutions, LLC

Whitman Legal Solutions, LLC

Violinist Clayton Haslop has an impressive violin pedigree. He studied with Nathan Milstein, who, in turn, studied with storied violinists Leopold Auer and Eugene Ysaye and was among a handful of top 20th century violinists.

As a teenager, Haslop was in the first violin section of the Los Angeles Chamber Orchestra. His decades-long career includes international travel as a soloist. Based in Los Angeles, he performed in hundreds of motion pictures and served as concertmaster of the Oscars orchestra.

Then disaster hit. Haslop developed focal dystonia. Although focal dystonia can impact many parts of the body, Haslop’s condition focused on his hand and slowly robbed him of the use of two fingers on his left hand–the hand used to play notes on violin strings.

It was a disability that would have caused most violinists to give up performing, but it didn’t deter Haslop. Instead, Haslop learned to play the violin with the remaining two fingers on his left hand. He even learned to play Tchaikovsky’s challenging violin concerto with just two left hand fingers, instead of the usual four.

Like Haslop, some people who contract COVID-19 may be left with permanent disabilities even though they survive the illness. Others who have COVID-19 may have few or no symptoms. But everyone who contracts COVID-19 must deal with the fear others in the community may have of contracting the virus.

Businesses have a particular challenge when hiring COVID-19 survivors. Employers may not want to unfairly discriminate against individuals who have already suffered from the virus. But businesses also need to assure that other employers and their customers remain safe. Businesses also may fear that customers may take their business elsewhere if they learn that an employee had COVID-19–even if that employee is no longer contagious.

This article is one of a series of articles about how COVID-19 impacts businesses and real estate owners. This article discusses recent Equal Employment Opportunity Commission (EEOC) guidance about disability discrimination and COVID-19 testing under federal employment discrimination laws. This article is limited to the EEOC’s current guidelines, but most states and local governments will apply similar standards under their disability discrimination laws.

Disability Discrimination Law Basics

Several different federal laws govern disability discrimination. The best-known disability discrimination law is the Americans with Disabilities Act of 1990 (ADA). The ADA prohibits disability discrimination by employers with 15 or more employees. The ADA also applies to public accommodations. The public accommodations section of the ADA applies to most businesses and real estate owners since they usually have areas generally available to the public.

The Rehabilitation Act of 1973 (Rehab Act) prohibits disability discrimination in the federal government. The Rehab Act also applies to certain businesses, schools, and organizations that receive federal funds.

In addition, most states have laws prohibiting disability discrimination in both employment and public accommodations. And some local jurisdictions also prohibit disability discrimination. Most state and local laws are similar to federal laws, with one difference: State and local laws frequently apply to businesses with fewer than 15 employees. For instance, the Human Rights Law in Montgomery County, Maryland, where my office is located, applies to all employers in the county.

What is a Disability?

The ADA defines three categories of disability discrimination:

  1. Individuals who have a physical or mental condition that substantially limits a major life activity for a significant period of time (for example, six months or more) (Disability)

  2. Individuals who have a history of having a Disability

  3. Individuals who are perceived to have a disability (even if they do not have the Disability)

  4. Individuals who associated with someone with a Disability

When is COVID-19 a Disability?

Many infectious diseases, such as the flu, don’t last long enough to be considered a disability even though they may substantially limit a major life activity while the individual has the disease.

Some people who survive COVID-19 have permanent damage to their lungs or other organs. Those individuals likely have a Disability.

Based upon the very limited information available right now, having COVID-19 frequently won’t be a Disability. That’s because it appears that most people with COVID-19 recover within several weeks without lasting consequences, despite having experienced severe symptoms. And it seems many people with COVID-19 experience few or no symptoms.

Due to stigma and fear, someone who has had COVID-19 can be considered to have a disability under the ADA because others perceive that person as having a Disability. For the same reason, people whose family members have COVID-19 might be associated with someone who has a Disability.

Therefore, COVID-19 can trigger ADA coverage in any of the following ways:

  • An individual experiences substantial limitation of a major life activity because of COVID-19;

  • An individual has a Disability that makes them at higher risk of contracting COVID-19, such that they require ADA accommodations in the workplace, even though those accommodations might not have been required for them previously;

  • An individual has a family member who contracts COVID-19, which causes others to perceive the individual as having a disability (even if the individual does not have COVID-19 and even if the family member’s COVID-19 was not severe enough to be considered a Disability);

  • An individual previously had COVID-19 that qualified as a Disability but now has recovered.

What the EEOC Says About COVID-19 in Employment

Although individuals with COVID-19 may be entitled to protection against discrimination under the ADA, employers also may owe obligations to other employees and customers to help keep them safe from contracting the virus. The EEOC’s guidance gives employers a road map for balancing these concerns.

Employers Can Screen Employees Before They Enter the Workplace

Employers can take an employee’s temperature and ask questions about COVID-19 symptoms before an employee is allowed to go to work. Employers also can conduct COVID-19 testing to determine if employees currently are infected with COVID-19.

However, any screening must be accurate and reliable based upon current standards. And testing must be necessary to protect others from a direct threat. While significant screening might be warranted for an aide in a nursing home or a barista who interacts with customers, the same screening might not be appropriate for security personnel who work alone at night in a building and do not interact with others.

Employers May Not Conduct COVID-19 Antibody Testing

The EEOC, following Center for Disease Control and Prevention (CDC) guidelines, prohibits COVID-19 antibody tests (which test whether a person previously had COVID-19) as a condition to being allowed to work. That likely is because the purpose of antibody tests is to determine the likelihood that the employee might contract COVID-19, rather than to keep others safe from contracting the virus from the employee.

Employers May Require Employees to Wear Personal Protective Equipment (PPE)

Employers may require employees to use PPE, such as masks and gloves. Employers also may require employees to follow protocols for hand washing, social distancing, and other measures designed to minimize the risk of COVID-19 transmission.

Employers Can Ask Employees Who Are Sick About COVID-19

Employers can ask employees who call in sick whether they have symptoms of COVID-19. The EEOC guidance doesn’t say that an employer may ask whether the employee has had a positive COVID-19 test. Any medical information the employer receives from the employee must be kept confidential.

Employers Can Require a Physician’s Note Before Allowing Employees who had COVID-19 to Return to Work

Employers may require standard physician fitness for duty documentation before allowing a sick employee to return to work. But the EEOC urges employers to be flexible in the form of documentation, noting that physicians may be too busy treating patients to fill out the significant documentation typically required in a fitness for duty certification.

Employers Must Provide Reasonable Accommodations for Employees Who Are at Higher Risk From COVID-19

Some employees may have preexisting medical conditions, such as diabetes, which place them at greater risk should they contract COVID-19. Employers must provide those employees with reasonable accommodations upon request. Accommodations might include telecommuting, job restructuring to limit those employees’ contact with others, or plexiglass barriers.

Employers also must entertain employee requests for modification of PPE requirements to accommodate a disability. For example, an employer may be required to provide non-latex gloves for an employee with a latex allergy. Or an employer may be required to provide employees with masks with a clear area around the mouth to accommodate an employee who relies upon lip reading to communicate.

But employers do not have to provide an accommodation if it is an undue hardship for the employer. For instance, if a coffee shop has only two baristas on duty, it might not be possible to modify work duties so that only one of them has customer contact.

Employers Should Keep Up-to-Date and Be Proactive

It required attentive persistence for Clayton Haslop to learn to play the violin with only two fingers on his left hand. He not only had to be concerned about the usual challenges of playing a difficult concerto technically correct while delivering a music message. He also had to modify his strategy has his condition progressed. Employers likewise must pay close attention to requirements while also being nimble to adapt to changes.

Current EEOC guidelines rely heavily on CDC guidance. However, because COVID-19 is a novel or new virus, scientists are learning more about it every day. CDC guidance changes with scientific developments and EEOC best practices may change also.

Employers also must comply with state and local requirements. Those requirements generally follow CDC guidance. But pandemic conditions and local culture vary throughout the United States. Therefore, some state or local health guidelines may sometimes differ CDC guidance for the nation. Employers should follow the stricter of the applicable guidelines.

Although this article discusses EEOC guidance specific to COVID-19, EEOC has had pandemic preparedness guidelines in place since 2009. Those guidelines, adopted during the H1N1 pandemic, provided a jumpstart for COVID-19 response. In addition to responding to the current pandemic, Employers should use the knowledge gained from the COVID-19 response to prepare for the next pandemic.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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