You may be wondering how to best cope with the risk of COVID-19 when you return to work. Disorderly work conditions could be dangerous considering that people are dying from the disease. No one wants to earn a paycheck facing that risk.
This article provides information about your rights under the ADA (the Americans with Disabilities Act) and how the ADA protects employees returning to work.
How Does the ADA Protect Employees?
First, let’s look at what the statute mandates. Specifically, under the ADA an employer cannot:
● Discriminate against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment;
● Discriminate on the basis of a physical or mental impairment that substantially limits one or more major life activities or because of a record of such an impairment; or cannot regard or treat an employee as having such an impairment; or
● Fail to provide reasonable accommodations for a qualified employee or applicant with a disability, such as providing handicap accessible facilities, modifying work schedules or conditions, restructuring, or providing modified equipment or interpreters.
A person must be capable of performing the essential functions of the job, just like the other employees who work in the same capacity. The difference is that the employer must make changes that will accommodate the disabled employee’s needs in order to do his or her job.
The law also protects the employer because the accommodation requested by the disabled employee must be reasonable in the amount of difficulty or expense, so as not to cause the employer an undue hardship.
Is an Employee with COVID-19 Considered "Disabled"?
Currently, experts debate whether COVID-19 comes within the ADA meaning of “disability.” So much is still unknown about this unique coronavirus that even the EEOC has not provided a definitive answer. Since under the ADA “one size does not fit all,” each employee and his or her unique physical and mental condition must be carefully considered to determine the basis of disability.
According to the ADA, “disability” generally means a “physical or mental impairment that substantially limits one or more major life activities” which is not transitory or minor. The cororanvirus attacks the body from head to toe, according to experts in a Wall Street Journal article. While the majority of patients have mild symptoms, experts do not know the long term effects. Frankly, there is no black-and-white answer regarding whether COVID-19 legally is a “disability,” but it sure seems that way.
What Protections Should the Employer Provide at Work?
The Equal Employment Opportunity Commission (EEOC) has published a number of articles about how to apply the ADA rules to assure a safe return to work during this ongoing pandemic. The agency suggests preventative measures such as wearing masks at the office, maintaining distance between employees, taking employees’ temperatures, and encouraging employees to wash hands frequently. The employer may design accommodations for unique situations.
The EEOC explains the employer’s duties in providing reasonable accommodations to employees susceptible to COVID-19 and also those with a preexisting mental illness that could be exacerbated by the stress of facing the risk of COVID-19 at work. The EEOC gives guidance on what can and cannot be discussed by the employer about employees’ medical conditions.
Additionally, the EEOC warns employers against discrimination and harassment based on prohibited biases that may stem from misdirected fear related to the COVID-19 virus. Both the Department of Labor and the Center for Disease Control also provide extensive information on their websites relating to how to address COVID-19 in the workplace.
The EEOC’s and other agencies’ publications are extensive and detailed. If you have questions about any regulation, you should contact an experienced employment lawyer who has studied and is well versed in these publications.
What to Do if Your Employer Violates the ADA
More than ever before, protecting your health so you are able to earn a living is vitally important. This particular coronavirus is unique in its impact on the human body, and it is serious. Added to the dilemma are the massive layoffs causing the highest rate of unemployment since the Great Depression. Returning to an unsafe workplace only to become infected with COVID-19 could be disastrous.
If you or someone you know has suffered from COVID-19, recovered well enough to return to where you work, and the employer is not following the ADA, you should contact an experienced employment lawyer who can advise you on what to do. At Gardner Employment Law, we understand the statutes and regulations. If you need help, feel free to contact us.