What You Need to Know to Stay ADA Compliant in the Age of COVID

As your team returns to work, anxieties might be running high.  Your staff may be concerned about their exposure to COVID, about new safety procedures, or potentially exposing a loved one or family member to COVID.  While you’re anxious to return to business, your staff might just be generally anxious.  While it’s always important to respond with care and consideration to your employees’ concerns, COVID has also added another element to these conversations: the ADA.  During the pandemic, the ADA has become an important consideration in your interactions with employees.  This article will delve further into how to stay ADA compliant in your COVID workplace, how to avoid ADA discrimination complaints and lawsuits, and a general refresher on ADA employer requirements in general.  

Staying ADA compliant: the basics 

As a general refresher, the ADA, or Americans with Disabilities Act, was passed in 1990 to provide protections for people with disabilities when it came to accessing goods and services, programs and activities put on by the government, and employment.  Title I of the ADA is applicable to employers with 15 or more employees (though it’s important to note that many states have laws that add in protections for employees at workplaces with less than 15 employees).  This law protects individuals who qualify as having a disability (or record of disability) from discrimination by their employers.  It also protects them from retaliation for asserting their rights under the ADA via a complaint or request for accommodation.  The cornerstone of the ADA is defining who these qualified individuals with disabilities are.  Under the Americans with Disabilities Act, a person with a disability has a physical or mental impairment that significantly limits critical life activities.  These life activities include (but are not limited to): hearing, speaking, seeing, walking, learning, concentrating, communicating, thinking, working, interacting with others, and breathing.  Some examples of physical disabilities are blindness, epilepsy, and emphysema.  Some examples of a mental impairment are Depression, Schizophrenia, Autism, and Anxiety.   

When it comes to employment protections, the individual in question must be qualified to do their job.  This means they must satisfy the general job requirements, including education, experience, skills, licenses, and specific abilities relevant specifically to that role.  They must be able to perform the most basic, essential duties of their job with or without a reasonable accommodation from their employer.  A reasonable accommodation could be any modification to the job, its duties, or the work environment that doesn’t create a hardship that is extensive, costly, disruptive, or fundamentally alters the business’s operations.   

Normally, a business stays ADA compliant by engaging in an ‘interactive process’ with employees who are requesting an accommodation to complete their job.  This is a sit-down conversation, where the employee and employer work together to come up with something that will be mutually beneficial, helping the employee complete their job duties without hurting the business’s best interests.  

Staying ADA compliant during the pandemic 

One of the latest HR updates to come from the COVID pandemic is the new relevance of the ADA.  There are many individuals who already have some sort of qualifying disability, frequently anxiety or a condition that makes breathing difficult (like emphysema).  These people are finding that COVID has made the requirements of their jobs suddenly far more difficult or dangerous.  The ADA provides protection for them as they seek accommodations, as well as a proscribed process for seeking these accommodations. 

For instance, somebody with emphysema, a disability under the ADA, might not be able to wear a mask at their job, even if they are required to because they interact with customers all day.  The person will either have intensive difficulties breathing, or they will be particularly at risk for serious complications (or death) if they contract COVID.  Under the ADA, this individual can request that their employer make an accommodation for them.  This accommodation could be something like working remotely or switching to a role that is in the back office and away from customers and coworkers. To get this accommodation, the person in this example would engage in an interactive process with their employer.  During this process, they will lay out their difficulties in completing their job duties, as well as some examples of what might be helpful.  Their employer can stay ADA compliant by listening and working together with the employee to find some solution that will be mutually beneficial until the pandemic is over, and masks aren’t needed.     

Common questions about staying ADA compliant during the pandemic 

These are some common questions that MP’s HR services team has gotten from clients regarding the ADA and COVID.  Even if the specific questions aren’t exactly something that your business has encountered, they may still shed light on challenges you are encountering, or they may be things that you encounter as the pandemic goes on.   

Do employers have to provide reasonable accommodations Under the ADA in response to the pandemic?  

The short answer to this question is yes.  An employer is responsible for providing a reasonable accommodation for an employee who requests it if: 

• they have a disability, as defined by the ADA 
• during the pandemic that disability prevents them from performing an essential job duty with or without a reasonable accommodation 

• they request an accommodation from their employer so that they can more easily complete their job duties  

Who can receive a reasonable accommodation for completing their job under the ADA during the COVID crisis? 

The important thing to note here is that not everyone will qualify.  People who are protected by the ADA must be qualified to do their job with or without reasonable accommodations.  They must have a record of, or a current disability that gets in the way of major life activities.  For example, not everyone who feels anxious sometimes should get to work from home because COVID exacerbates their anxiety.  However, if an employee who has a history of diagnosed, debilitating anxiety and requests an accommodation, the ADA protects them. 

As an employer, you should focus on the interactive process.  Notably, this process is also just good practice as an employer, whether your staff has disabilities or there’s a pandemic.  Working with your staff to find ways to support them, while not obstructing the business’s usual operations is always going to lead to better results in your bottom line.  Employees will be happier, work harder, and achieve more.   

What if an employee complains that wearing a mask exacerbates their anxiety disorder?  

Engage in the interactive process with your employee.  If they can’t work remotely or be moved to a position where they’re isolated and don’t need a mask, you can do a few different things; 

• Supply a face shield they can wear instead 
• Offer some breaks to allow the employee to go outside alone and take their mask off for a bit 
• Move the employee to a shift that is very early or late so they don’t need to interact with others much and thus can wear their masks less often.    

Can disability-related documentation be required when an ADA accommodation is requested to reduce the risk of exposure to COVID?  

The ADA doesn’t require this documentation, but you can request it.  However, during COVID times, it’s worth thinking about whether this documentation is truly necessary.  Going to the doctor may be riskier in terms of exposure to COVID and doctors are generally busier and less available.  So, asking for this documentation might make things especially difficult for your employee, particularly during a time when everyone is experiencing some level of stress already.  It’s also possible to engage in the interactive process without getting documentation or your employee’s disability first, so why not just begin?  

If a job can only be performed at the workplace, can you offer accommodations to an employee if remote work isn’t possible?  

Yes.  If you are creative, there are likely many possible solutions you can offer.  You could: 

• Make physical changes to the environment, like putting up plexiglass shields, making aisles and hallways one way, or blocking off areas in which an employee is working so that customers and clients can’t come close.   

• Temporarily transfer the employee to a job or department with less exposure to people. 

Can an employee get an accommodation under the ADA to avoid exposing a family member at a higher risk of COVID?  

No.  In this case, an employee would not be protected under the ADA.  As mentioned above, however, it’s still ideal to try to work with employees if you can.  If you do offer an accommodation for an employee in this situation, avoid claims of discrimination and ensure that it doesn’t appear that you’re offering some special advantage only to them.  

When discussing an ‘undue hardship’ to a business, can you take into account circumstances created by the pandemic, like a reduced revenue? 

Yes, if your business has been affected by the pandemic, you can take this into account when you’re engaging in that interactive process with an employee.  Perhaps your revenue was high enough before the pandemic so that you could have easily built a new desk for your employee who uses a guide dog and wants extra room for it.  However, now you may not be able to afford it.  The key is to not just flatly deny requests.  Weigh them against your budget and go through that interactive process.  Perhaps there are similar options that are cheaper available to you.  Or perhaps when you know what an employee needs, you can offer some other accommodations that they didn’t know were possible (but happens to cost less).