About one-fifth of people with disabilities are employed, according to the Bureau of Labor Statistics. In the best of times, employees with disabilities face significant discrimination in the workplace. As the economy gradually re-opens, employees with disabilities may be particularly vulnerable to workplace discrimination, and should be aware of their rights under the Americans with Disabilities Act (ADA).

The ADA, among other things, prohibits employers from discriminating against employees with disabilities. In particular, the ADA imposes strict limitations on when employers can inquire into an employee's medical conditions. However, an exception applies when the employee poses a “direct threat.”

In April 2020, the Equal Employment Opportunity Commission (EEOC) released guidance pertaining to employee's ADA rights during the COVID-19 pandemic. The guidance, which has been periodically updated since then, reiterated that the “direct threat” defense is a “high standard,” limited to when the employee poses a “significant risk of substantial harm” to himself or others.  But the EEOC indicated that employers may have more discretion than normal to intrude into their employees' medical histories due to the infectious nature of the coronavirus. 

For employees returning to work from a pandemic-forced layoff, the EEOC guidance states that employers have a right to ask employees if they are experiencing COVID-19 symptoms, such as fever, chills, cough, shortness of breath, or sore throat. If an employee previously had COVID-19, employers may require that the employee obtain a doctor's note stating that he or she is free of COVID-19, although employers may not require employees to obtain a doctor's note in person. Workplace temperature checks are permissible.

However, the EEOC, in updated guidance released June 17, 2020, said that employers cannot require employees to take antibody tests before returning to work, although they may require a test to ensure that the worker does not have the virus. The agency also specified that employers are not required to accommodate employees with family members stricken with COVID-19.

When hiring applicants, employers cannot inquire about a person's COVID-19 history during the interview process. Employers may, however, screen applicants for COVID-19 symptoms after proffering a conditional job offer, provided that they screen all, not just selected, applicants. If the employee does test positive, the employer may have to provide the employee a delayed start date as a reasonable accommodation.

Likewise, the EEOC guidance states that employers may need to reasonably accommodate employees through temporary job restructuring, as long as the employee can perform the essential functions of the job, or by providing items like non-latex gloves, modified face masks for interpreters, and other safety equipment. Accommodations must be determined on an individualized basis.

All of these requirements, like the ADA generally, apply only to employers with 15 or more employees.

Click here to read the latest COVID-19 guidance from the Centers for Disease Control and Prevention for employers with workers at high risk.