Covid-19 and the Americans with Disabilities Act

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IN THIS ARTICLE

How is Covid-19 affecting labor and employment?

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What is the potential for high-risk employment litigation related to Covid-19?

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Can employers be required to accommodate workers who are unable to get vaccinated because of their disability?

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Is the administration of Covid-19 vaccines restricted under federal EEO laws?

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Actionable guidance for employers

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Employee noncompliance with Covid-19 mandates and “reasonable accommodations”

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Covid-19 has brought about many changes for employers. Navigating the complexities of vaccination, paid leave, reasonable accommodations, temperature checks, workplace safety, data privacy, and telework has become especially acute as it relates to Covid and the ADA.

New laws have been enacted and more are on the way. The potential for high-risk and high-volume areas of employment litigation are rising as the landscape continues to shift. Covid disability under ADA is critical for employers to understand – as is ADA guidance for long-haul Covid.

How is Covid-19 affecting labor and employment?

The Covid-19 pandemic will continue to disrupt businesses and their employees. Remote work, vaccination and mask policies, changing sick leave policies, employee accommodations, and workplace safety considerations have changed the game. Careful attention is being paid to worker’s rights as they relate to Covid and the ADA.

• Businesses are faced with a litany of new challenges surrounding the safety, well-being, and rights of employees
• Employees are faced with new fears, including the fear of retribution if they act according to their own best interests to avoid the virus
• Business are seeking ADA guidance for long-haul Covid
• Workers are exercising their rights around Covid and the ADA

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What is the potential for high-risk employment litigation related to Covid-19?

Crisis responses to the onset of Covid-19 simultaneously impacted workers-rights safeguards and changed the calculus of corporate risk assessment. Those workplace issues are likely to have material impacts on compliance and are complicated jurisdictionally – employment lawyers can expect litigation risks to rise as the economy moves forward in long-term pandemic response.

Potential areas for increased likelihood of litigation include issues related to:

• Covid disability under ADA
• Vaccination
• Wage and hour tracking and payment
• Business liability for workplace health and safety
• Company policies
• Leave benefits
• Accommodations for religious beliefs and disability

Can employers be required to accommodate workers who are unable to get vaccinated because of their disability?

Yes. Under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, reasonable accommodations for Covid-19 vaccination work requirements must be provided due to disability or sincerely held religious beliefs, unless the accommodations create undue hardship. Vaccination issues in the workplace will continue to evolve, and the most recent ADA employment practices will need to be carefully followed.

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Bloomberg Law’s Fast Answers provides answers to other popular questions like these about Covid-19 vaccination work requirements, ADA compliance and reasonable accommodations:

• Under the ADA, must employees ask for reasonable accommodations for workplace Covid-19 vaccination requirements?
• What are examples of reasonable accommodations for employees who are not vaccinated for Covid-19 because of disability?
• Does excusing performance of essential functions of a job because of the Covid-19 pandemic mean that telework is usually a “feasible accommodation” under the ADA?

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Download: Fast Answers on Covid and ADA

This helpful guide will help answer your questions about Covid-19 vaccination requirements and the ADA.

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Is the administration of Covid-19 vaccines restricted under federal EEO laws?

No. Under the Americans with Disabilities Act, because Covid-19 vaccine administration does not seek information about employees’ physical or mental health, it is not considered to be a medical examination that is subject to ADA restrictions.

Under the Genetic Information Nondiscrimination Act, employers that administer a Covid-19 vaccination to employees do not trigger GINA requirements because such action does not involve the use of employees’ genetic information to make employment decisions or the acquisition or disclosure of genetic information.

Actionable guidance for employers

The legal landscape is evolving quickly in the wake of Covid-19. Amid this instability and confusion, practitioners must help their clients and businesses grapple with dramatic change while keeping an eye on the future.

Find actionable guidance in this special report: Covid-19 Impacts: Practical Guidance, Analysis & More. Our exclusive report includes:

• Sample Policy – Protecting Data and Information When Teleworking/Working Remotely (Annotated)
• [Checklist] Worksite Reopening During Coronavirus
• Analysis: Reasonableness Requirements in M&A Covid-19 Provisions
• Vaccination Exemptions

Employee noncompliance with Covid-19 mandates and “reasonable accommodations”

There are many reasons an employee might not comply with the recommended requirements, policies, and practices put in place by employers. Following an attempt to agree on reasonable accommodations – using what’s known as the ADA Reasonable Accommodation Interactive Process – generally speaking, when an employee fails to follow these rules, they may be subject to termination.

But there certainly are exceptions. A thorough review of federal, state, and local laws is also required before employers take any actions such as disciplining or terminating an employee for noncompliance.

Employee noncompliance may occur for multiple reasons, including matters related to Covid and the ADA, and some objections are protected under state laws.

[For more answers to frequently asked questions about Covid-19 and the ADA, download our free report: Fast Answers on Covid and ADA.]