Sixth Circuit Rejects Two Religious Exemption Challenges to Employer COVID Vaccination Policies

In what seems never-ending COVID-19 litigation, the Sixth Circuit affirmed summary judgment for two employers who were sued for violating employees’ religious beliefs.  In the first, the employee was provided with a weekly testing accommodation to avoid vaccination, but she rejected it as coercive, manipulative and invasive even though the employer permitted saliva testing.  DeVore v. Univ. of Kentucky Bd of Trustees, No. 23-5890 (6^th Cir. 10/11/24).  The Court found that she failed to produce any evidence to show a conflict with her unspecified religion or beliefs and the employer’s test-or- vaccinate policy.   In the most recent case, the employee’s request to work remotely without a vaccination was denied because her essential job duties required her to work daily with healthcare providers who are tending extremely ill children.  Kaiser v. St. Jude’s Children’s Research Hosp., No. 24-5207 (11/18/24).   The Court found that it would constitute an undue hardship to transfer her to another job and determine whether a different job could be performed remotely even though it had permitted a dozen other employees to work remotely as an accommodation.  It also rejected her direct supervisor’s affidavit as conclusory about whether accommodations existed and the manner in which her job duties could be performed remotely.  Finally, the Court rejected her argument that the employer failed to engage in an interactive process or that an elaborate process was even required under Title VII (vs the ADA). 

According to the Court’s opinion in DeVore, the plaintiff had worked for the University since 1999.  Following the COVID pandemic, she requested to retain a hybrid work schedule, but was refused.   When the University instituted a vaccinate-or-test policy, she sought a religious exemption.  While never specifying the name or nature of her religion, she objected to the policy as coercive (i.e., could be fired for non-compliance), manipulative (i.e., trying to compel vaccination) and invasive (i.e., genetically reprogram her or risk contamination from nasal swabs, etc.).  The University then agreed to permit her to be tested with cheek swabs or saliva, but she maintained her “religious objections.”   She was subjected to progressive discipline and threatened with termination during an unpaid suspension.  However, the University encouraged and permitted her to retire instead.   In response to the University’s summary judgment motion, she submitted only her prior emails and no affidavits or deposition testimony. 

[She]  offers no other evidence to show a conflict between her religion and the Policy. She supplied no affidavit or declaration articulating how complying with the Policy conflicts with her religious beliefs or practices. She entered none of her own deposition testimony in the record to add color to the excerpts the University provides. She filed a six-page complaint, which in any event is unverified, that included only the conclusory statement that “due to her deeply held religious beliefs,” she “objected to mandatory Covid testing.” [She] has, in fact, throughout this litigation never identified in the record what her religion is.

In the end, [her] religious opposition to the Policy flows almost entirely from her objections to nasal PCR testing and vaccination, objections she raised before the University informed her that she could comply with the Policy via oral swab or saliva tests, and she fails to account for these alternatives. Her invasiveness objection responds only to nasal swab testing, her manipulation objection ignores testing as a bona fide substitute for vaccinating, and her coercion objection doubles down on her manipulation objection, supplementing it with only her “personal” characterization of mandatory testing as inequitable and unfair.  . . .  But they fail at summary judgment to establish a conflict between [her] religion and the Policy. [Her] Title VII claim fails with them.

According to the Court’s opinion in Kizer, the plaintiff “was employed by [the] Hospital as an Electronic Health Record (“EHR”) Applications Analyst assisting with preparations for the hospital’s two-year-long transition to a complex new EHR system known as “Epic.”’  The Hospital also implemented a mandatory vaccination policy (to protect its pediatric patients) with a religious exemption process. The plaintiff sought an exemption and sought to work remotely.  However, when examining her primary job duties, the Hospital denied the request because of “the upcoming launch (or “go live”) of the new Epic system and  . . . her job required her to work in person in clinical areas and in contact with clinical people.”  In particular, “in the run up to the system’s “go live” date, “it was anticipated that [she] would shadow clinicians, nurses, research coordinators, clinical laboratory personnel, pharmacists and others involved in clinical research, often in yellow-zoned clinical areas, to better understand decision-making and workflow for the build of the new system.”’ Apparently, after she was fired, she suggested other possible accommodations which were never considered.  She ultimately submitted an affidavit from her direct supervisor suggesting that some of her duties could have been transferred to vaccinated staff or she could be reassigned to a position which could accommodate remote work.

The Court rejected the plaintiff’s argument that the Hospital failed to reasonably accommodate her request because it never consulted with her or her direct supervisor or engaged in any interactive process (like would be required in evaluating reasonable accommodation requests under the ADA). 

Though [the plaintiff]  frames this assertion as a factual dispute, she has pointed to no legal authority that would require employers considering Title VII accommodations (rather than accommodations under the Americans with Disabilities Act (ADA)) to engage in such a process, much less any legal authority holding that Title VII required [the employer] to consult specifically with [her] or her direct supervisor,  . . .. , rather than [her] ultimate supervisor,  . . . . Neither the ADA nor Title VII contains a statutory reference to a required interactive process, but the regulations implementing the ADA state that “[t]o determine the appropriate reasonable [disability] accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” . . . Title VII’s regulations contain no similar reference to an interactive process. [The plaintiff] does not ask us to determine whether the ADA’s regulatory interactive-process requirement applies to religious accommodation claims under Title VII. But even if we assume that such a requirement applied, [the employer] would satisfy it, particularly as defined by regulatory guidance specific to Title VII.

The Equal Employment Opportunity Commission (EEOC) publishes a nonbinding compliance guide for employers covered by Title VII which provides that, “[a]lthough an employer is not required by Title VII to conduct a discussion with an employee before making a determination on an accommodation request, as a practical matter it can be important to do so.” . . . The manual continues, “[o]nce the employer becomes aware of the employee’s religious conflict, the employer should obtain promptly whatever additional information is needed to determine whether a reasonable accommodation is available without posing an undue hardship on the operation of the employer’s business.” Id. Importantly, the EEOC concludes that “[f]ailure to confer with the employee is not an independent violation of Title VII. But as a practical matter, such failure can have adverse legal consequences.”

 . . ..

 . . . [The employer] submitted undisputed evidence that it developed and implemented a systematic process for considering requests for religious accommodation, including by “obtain[ing] promptly whatever additional information [was] needed to determine whether a reasonable accommodation [was] available.” . . . [The plaintiff’s] request provided ample information about her religious beliefs regarding the vaccine.  . . [The employer] presented evidence that it obtained and developed information about the risk of COVID exposure in the context of its mission of treating vulnerable juvenile patients,  . . . as well as evidence that [it] obtained information about [her] essential duties and whether her job could be performed remotely, . ..

Even under the ADA, an employer’s failure to engage in an interactive process “is actionable only if it prevents identification of an appropriate accommodation for a qualified individual.”  . . . . “In other words, if the employee fails to create a genuine dispute of material fact that a reasonable accommodation would have allowed her to perform the essential functions of her job, she cannot survive summary judgment on an interactive-process claim.”  . . .  As we hold below, [she] has not “present[ed] evidence sufficient to reach the jury on the question of whether she was able to perform the essential functions of her job with an accommodation.”

[The plaintiff] argues that [the employer] should be required to present evidence that it considered various alternative accommodations proposed by [her] after the fact, and she asserts that [it] failed to engage in a good-faith interactive process because “[t]he only accommodation it ever considered . . . was that all the job duties of the [religious objector] had to be able to be performed off campus.”  . . .  But even under the ADA’s explicit interactive-process requirement, “. . . [an] employer has the burden of showing how [a proposed] accommodation would cause an undue hardship, but the employer is not required to propose a counter accommodation in order to participate in the interactive process in good faith.”  . . . . And we have held in other Title VII contexts that “[i]n deciding whether an employer reasonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.”  . . .  

Ultimately, [the employer] presented evidence that, because unvaccinated people posed a safety risk to its vulnerable and unable-to-be-vaccinated juvenile patient population, the presence of any unvaccinated staff on campus would be an undue hardship in the context of St. Jude’s core business and mission.  . . .  [She] has submitted no contrary evidence showing that it would be safe for unvaccinated people to be on campus. In fact, she expressly disclaims any “challenge[] [to] the legitimacy of [the employer] to implement a mandatory COVID-19 vaccine policy.”

We thus cannot say that, as a matter of law, [it] violated an implicit interactive-process duty under Title VII (as yet unrecognized in this circuit). [It] has presented evidence of a thorough information-gathering process with input from [the plaintiff] herself. And the EEOC is clear that Title VII contains no such hard and fast requirement of an interactive process. As discussed below, [she] has not provided legal authority to support a contrary conclusion or sufficient factual evidence to allow a reasonable jury to find that [it] could have accommodated Kizer without undue hardship.

To show that it would be an undue hardship to accommodate her request,

The employer must thus show that “the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business,” meaning that the statutory requirement of “‘undue hardship’ is [met] when a burden is substantial in the overall context of an employer’s business.”

 . . . .

[The employer’s] evidence indicates that, contrary to [the plaintiff’s] suggestion, it would be less than a full year before her in-person duties kicked in.  . .. It thus presented evidence that in-person, “at the elbow” shadowing was an essential function of [her] job not easily “swapped” with another employee.  . . .  And because [she] could not be safely on campus while unvaccinated, she could not be accommodated without undue hardship.

[The employer’s] evidence also revealed that [her] other proposed accommodations would create a substantial burden in the overall context of its business, and thus an undue hardship. [It] submitted evidence that it maintained no 100% remote positions; even [her] out-of-state colleagues were required to come to campus on a regular basis.  . . . Because transferring [her] to an alternate position that could be performed 100% remotely would require [it] first to identify a new position for which [she] was qualified and then to determine anew whether that position could be modified to accommodate her, such a transfer would not alleviate the undue hardship.   . . . And [it] submitted evidence that it developed a thorough and systematic process for considering requests for accommodations,  . . .  that several dozen employees had requested religious accommodations, and that, unlike [her], the small number who were ultimately accommodated already occupied positions that could be modified to be 100% remote,  . . . . The district court thus correctly found that [it] evidence demonstrated that it would be “a substantial burden in the overall context of [its] business,” to identify and modify new positions for religious objectors, “especially considering the number of people seeking accommodation.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Affirms Dismissal of All But Two Claims of Religious Discrimination Based on COVID-19 Vaccine Mandate

Last month, the Sixth Circuit affirmed the dismissal of all but two claims filed by employees who claimed that the hospital employer’s initial blanket denial of their religious objections to the COVID-19 vaccine constituted religious discrimination in violation of Title VII and the Ohio Civil Rights Act.   Saval v. MetroHealth System, No. 23-3672 (6^th Cir. 3/20/24).   The employer had reversed its decision and ultimately granted all of the religious exemption requests.  Thus, the employees who remained employed never suffered any concrete injury to justify litigation from “conclusory” allegations of the emotional distress caused over 36 days while they were forced choose between their jobs and their religious convictions or from the employer’s ability to reverse course again in the future.  Several of the employees had resigned before the employer denied the exemption requests, and thus, also lacked any injury from the employer’s initial denial decision.  However, two employees could sue for disparate treatment and failure to accommodate when they resigned more than 18 days after their requests were denied even though the employer had granted some medical exemption requests. 

According to the Court’s opinion, in August 2021, the hospital announced that all employees needed to obtain the vaccine by the end of October unless they requested a valid medical or religious exemption.  The employer received hundreds of exemption requests and stayed the compliance deadline for those employees while it worked through each of the requests.  While the employer granted some medical exemption requests, it denied all of the religious exemption requests in February on the grounds that the employees could not perform their jobs remotely, no reasonable accommodation was available and it would be an undue hardship to the employer.   It gave the employees 45 days to comply, but 36 days later, abruptly changed course on March 15 and granted all of the exemption requests.   Nine employees resigned before that 36^th day and filed suit.  They were joined by 36 other employees who remained employed by the hospital.  The trial court granted the employer’s motion to dismiss for lack of standing (i.e., were still employed and suffered no injury from the temporary denial) and failure to state a claim.  The Court affirmed the dismissal for all but the first two plaintiffs who had resigned after their exemptions had been denied but before the hospital reversed its decision. 

The Court affirmed dismissal for lack of standing because 36 employees did not suffer any injury from the temporary denial of the exemption requests.  It rejected their claims of mental anguish from having to chose between their jobs and their religious beliefs and threat that the employer could reverse its decision again in the future.  The Court found their allegations of past distress to be too conclusory to be actionable and “fears about a future denial were ‘contingent on future events that may never come to pass, which is a much ‘too speculative’ state of affairs ‘to satisfy the well-established requirement that threatened injury must be ‘certainly impending.’”

The Court analyzed the allegations of the first nine employees to determine whether they stated valid claims for constructive discharge -- i.e., whether they were forced to resign.  Six of these nine could not establish constructive discharge because they had resigned before their exemption requests had been denied in February.  An additional employee’s claim was denied because she had never filed a formal exemption request.

The Court’s majority agreed that the first two plaintiffs stated valid claims for constructive discharge because they requested exemptions, those exemptions were denied, they were denied the right to appeal and they were given a date to comply or be fired.   The trial court had determined that they resigned prematurely (albeit more than halfway through the 45 day period), but the Court disagreed.

The Court also reversed the trial court that these plaintiffs failed to state a claim for religious discrimination: “Plaintiffs 1 and 2 allege [the employer] failed to accommodate their religious beliefs by blanket-denying their vaccine exemption requests. They also assert that [it] treated them differently because of their religion.”  The first two employees “just need to plausibly allege that they were denied a religious accommodation and treated differently because of their religion.”

Further, these two employees alleged a plausible claim of failure to accommodate.  “The heart of the failure-to-accommodate claim is that an employer discharges (or otherwise discriminates against) an employee for failing a job-related requirement instead of abiding by its “statutory obligation to make reasonable accommodation for the religious observances” of its employees.”

The Court also found that these two employees plausibly plead a disparate treatment case.  They “alleged that [the employer] categorically denied all religious exemption requests while granting some nonreligious exemption requests—that is, that [it] treated them differently with respect to a condition of employment because of their religion.”

In concurring, one judge questioned whether this was really a constructive discharge case when the employees had been told when they would be terminated and could have sought a preliminary injunction to prevent an unlawful job termination. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Unemployment Claims Denied When Employees Resigned Without Good Cause

This Spring has brought a couple of interesting unemployment compensation decisions.  In the first, the claimant was denied compensation when he resigned because of fear of contracting COVID.  In the second, the claim was denied because the employee resigned his job without discussing his concerns with an offered promotion before turning it down.

Last month, the Franklin County Court of Appeals affirmed the denial of Pandemic Unemployment Assistance benefits, which had been previously approved, based on a warehouse worker’s fear of contracting COVID.  King v. Dir., Ohio Dept. of Job & Family Servs., 2023-Ohio-1724.  The claimant had resigned his position in May 2020 out of fear of contracting COVID.  He was initially awarded and collected approximately $10k in pandemic unemployment benefits over the next year.  However, his benefits were later disallowed and he was ordered to repay the benefits.  His appeal was denied, but the Commission granted his request to waive the overpayment collection.  He still appealed his denial of PUA to the common pleas court, but never filed a brief.  Unsurprisingly, the trial court denied his appeal because it is required to affirm the Commission if there is any competent and credible evidence in the record supporting its decision.  “Here, the evidence before the commission demonstrated, after the COVID-19 public health emergency began, [the claimant] left his employment as an Amazon warehouse worker due to his fear of contracting this disease. But an individual’s general fear of exposure to COVID-19 at the workplace is not one of the listed qualifying conditions set forth in 15 U.S.C. 9021(a)(3)(A)(aa) through (kk).”

In April, the Lucas County Court of Appeals also affirmed the denial of unemployment insurance to a claimant who lost both his full-time job and part-time job during the pandemic, after he turned down or resigned from a new full-time job offered by his previous part-time employer without adequately discussing his objections to the job offer.  Mason v. Emerald Environmental Servs., Inc., 2023-Ohio-1418.  While the hearing officer referenced both issues, she only cited to the statutory section about resigning a job without just cause.

After the claimant had been laid off from his full-time university job, his part-time employer explained that it was restructuring his part-time position offered him a full-time job with benefits, but paying slightly less per hour than his previous part-time job being managed out of a different location.  Feeling that it would involve too much travel away from his sick girlfriend and his five children, he claimed that he turned it down without discussing his specific concerns with the employer.  The employer explained that he had initially accepted the job, but then changed his mind because of his sick girlfriend.  The employer explained that it would not have involved significant travel and would have relayed that information to him if he had previously articulated that concern.  There was also testimony that the employer would have continued to employ him part-time if he had expressed interest. 

Typically, an employee has the right to resign if the employer materially changes their job, but they first need to discuss it with the employer to give the employer the opportunity to correct the situation.  In this case, the Commission determined that the employee quit without just cause because he was offered a full-time job (after losing his full-time university job) when it was explained that his part-time job was being restructured and he declined the full-time job without explanation.  The employee never established that he had been laid off or when he was fired from his part-time job.  Rather, he said that there had just been a series of discussions.  Therefore, there was sufficient evidence in the record to support the Commission’s conclusion that he had resigned and not been fired.

The Commission determined that he lacked just cause to resign his employment when he was offered a position paying $920/week (more than his $250/week part-time wages) and he failed to have any meaningful discussion about the working conditions before turning it down.  Had he discussed his concerns with his employer, he would have learned that his was being paid more  (because of the health insurance and retirement benefits) and would be travelling approximately the same amount or less as he had been. Finally, he would have been able to remain working part-time if that appealed to him more.  Because he was not involuntarily unemployed through no fault or agreement of his own, he was not entitled to unemployment compensation.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Temporal Proximity and Informality of Performance Coaching Is Insufficient to Show Pretext for Termination

Earlier this month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an Emergency Paid Sick Leave Act of 2020 retaliation claim where the employee was fired before she returned from the emergency COVID leave.   Kovacevic v. American Int’l Foods, No. 22-1675 (6^th Cir. 6-1-23).  Despite the temporal proximity between her protected conduct and her termination, the employee could not show pretext when the employer had repeatedly counselled her about her constant mistakes since when she had been hired 11 months earlier and had begun recruiting and interviewing replacement candidates before she called off sick.  The final straw had been finding many more undisclosed performance problems while the employee was on leave.  Ten other employees – over 25% of the workforce -- had taken COVID emergency leave and not been fired before or after returning to work. While “temporal proximity alone may provide ‘evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation,’ . . .  ‘temporal proximity cannot be the sole basis for finding pretext.’”  Pretext could also not be shown by the informality of her frequent coaching.

According to the Court’s opinion, the plaintiff employee was hired as an accounts payable specialist in January 2020.  While she was always exceedingly pleasant, she never mastered her job duties.  Some vendors went unpaid for months.  Some were overpaid or paid early.  She could not find basic accounting records, like invoices.  Because of her mistakes, checks needed to be re-run several times each week.  She thought that these mistakes were a “little things.”  Since she was hired, voided checks increased 952%.  In August, her boss told HR that he wanted to replace her and confidential advertisements were placed in October.  An interview was scheduled for November 10. 

On November 15, the plaintiff called off sick for COVID and wanted to remain off work until after Thanksgiving.  Her boss took over her duties in her absence and discovered over 95 blanks checks out of sequence that had been forgotten, 70 past due invoices, over $100K in vendor credits that had not been applied, and $2.5M active invoices that had not been organized or alphabetized.   He telephoned her on November 24 to inform her that her employment was being terminated (despite having not yet hired a replacement).   She filed suit.

Assuming that she could show a prima facie case of retaliation, the Court focused on whether she could show that the explanation for her termination – her ongoing poor performance – was pretextual and just a disguise for unlawful retaliation.  She argued that her poor performance did not actually motivate her termination.

While “temporal proximity alone may provide ‘evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation,’ . . .  ‘temporal proximity cannot be the sole basis for finding pretext.’”

While it was suspicious that she was fired while still on COVID emergency leave, the Court found no reasonable jury could find the timing suspicious when her documented performance issues were legion, recruitment had been underway before she called off sick and numerous and serious performance issues were discovered after she called off sick.

The Court also rejected her argument about shifting justification.  She claimed that just before she was fired, HR had mentioned that they had not yet decided what to do with employees returning with COVID.  However, she also claimed that her sole basis for believing that her performance was satisfactory was that HR also told her that she had a very positive disposition.  Granted, “when an employer expresses disapproval of an employee’s work performance only after the firing, there can be a genuine dispute of material fact about whether the employer’s reason for terminating the employee was pretextual.”  But in this case, the statement about returning employees was not evidence of retaliation when the Company had welcomed back more than 25% of its workforce from COVID sick leave.  Further, the HR employee was not the individual with personal knowledge of her work performance and there was no legitimate dispute that her supervisor was unhappy with her work performance.

The Court also rejected her argument that the supervisor had fabricated the justification for her termination by not informing HR of them before she was fired:

Nor can she show that [her supervisor’s] discoveries during her absence were fabricated justifications for terminating her. [Her] evidence of fabrication is that [he] did not document each incident or mention these issues to [HR] before she took COVID leave. Based on this, [she] argues that a reasonable jury could have found that [he] merely claimed to find evidence of poor performance while filling in for her in order to justify firing her for taking COVID leave.

[Her] argument fails here. [His] emails to [her] addressing her errors throughout her employment are contemporaneous documentation of her poor work performance. And even if [he] had not emailed [her] on each of these occasions, failure to document contemporaneously does not necessarily give rise to an inference of pretext.

The Court also rejected the plaintiff’s argument that her alleged poor performance was merely pretextual when she was not given formal performance warnings and progressive disciplinary policies were not followed and because she was not given the required performance evaluations from her offer letter and the employee handbook.  Unlike some employee handbooks which provide that progressive discipline will generally be followed, this employee handbook merely stated that it was an option when appropriate.

She alleges that [the company] failed to follow the procedure for progressive discipline outlined in the Handbook because [her supervisor] never explicitly referred to his criticisms of her work as “warnings.” True, where an employee handbook establishes a general practice of counseling employees before terminating them, a company’s failure to follow that practice may be evidence of pretext.

             . . . . . In any event, [her supervisor] repeatedly brought his concerns with [her] work performance to her attention, remarking on at least one occasion that her “errors” could not “continue to happen.” . . . So the fact that [he] did not formally tell [her] that he was warning her within the terms of the company’s progressive discipline policy simply does not demonstrate pretext.

 . . . True, an “employer’s failure to follow a policy that is related to termination or demotion can constitute relevant evidence of pretext,” . . . But even if [the company] did not strictly follow its review policies, [she] was certainly on notice that her performance was causing issues and had the opportunity to correct those problems. [Her supervisor] regularly notified [her] of problems with her performance, both via email and in person. And she still did not adjust her work performance. So [his] efforts—accomplishing the corrective objective that an annual review would—combat any finding of pretext.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

The EEOC's Finale of COVID Guidance

Yesterday, the EEOC released what is likely to be its last technical guidance on COVID-19.  In it, it addresses how employers may address continuing accommodations granted during the pandemic, how to accommodate employees and applicants with long-COVID and avoiding harassment of employees with long-COVID or need to continue wearing face-masks. For instance, following CDC standards constitutes a business necessity when it comes to medical inquiries and medical examinations.  Many of the revisions merely state recommendations or options instead of requirements.  To save you from having to read though the scores of unchanged FAQ, the revisions if the updated guidance are included below: 

A.1. If an employee calls in sick, how much information may an employer request from the employee in order to protect the rest of its workforce and others (e.g., customers) from infection with COVID-19? (Updated 5/15/23)

If an employee calls in sick, an employer may ask whether the employee has COVID-19 or common symptoms of COVID-19 as identified by CDC. If the employee has COVID-19 or symptoms of the disease, the employer may follow any CDC-recommended period of isolation with respect to when an employee may return to the workplace or otherwise work in close proximity to others.  See A.4., which also addresses following a CDC-recommended period of isolation.  Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

A.2. Where can employers obtain current information on symptoms associated with COVID-19? (Updated 5/15/23)

The list of symptoms commonly associated with the disease may change as public health authorities and doctors learn more and as different variants emerge . Employers should rely on CDC for guidance on symptoms currently associated with the disease. These sources may guide employers when choosing questions to ask employees. See also A.8., addressing the ability of an employer to ask employees if they have been diagnosed with or tested for COVID-19.

A.3. When may an ADA-covered employer take the body temperature of employees in an effort to screen for COVID-19? (Updated 5/15/23)

Measuring an employee's body temperature is a medical examination. See A.6. for a discussion of the type of assessment an employer must do to justify requiring a medical examination (or requiring employees to answer disability-related questions) under the ADA’s “business necessity” standard.  Employers may wish to consult CDC guidance or guidance from other public health authorities to determine if an elevated temperature is a possible indication of infection.  If it is, then taking the temperature of employees will meet the ADA standard. 

A.4. Does the ADA allow employers to require employees to stay home if they have COVID-19 or symptoms of COVID-19? (Updated 5/15/23)

Employers should consult current CDC guidance to clarify when and for how long it recommends someone with COVID-19, or symptoms of COVID-19 should stay home.  The ADA does not prevent employers from following CDC advice.  See also A.1., which addresses the information an employer may request when an employee calls in sick.

 . . .

A.8. May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19? (Updated 5/15/23)

Yes. Employers may ask all employees who will be physically entering the workplace (or otherwise working in close proximity with others, such as clients) if they have COVID-19 or common symptoms associated with COVID-19 as identified by CDC.   Employers also may ask if these employees have been tested for COVID-19 (and if so, ask about the result).   An employer may exclude those with COVID-19, or symptoms associated with COVID-19, from the workplace if consistent with CDC-recommended isolation protocols.   See also A.2.

A.9. May a manager require that a particular employee have a temperature reading or undergo COVID-19 viral testing, as opposed to imposing these medical examinations on all employees? (Updated 5/15/23)

Whether an employer wishes  to require a particular employee, or all employees, to have a temperature reading or to undergo COVID-19 viral testing, the ADA requires that the employer meet the “business necessity” standard because these are medical examinations. Therefore, it is important for the employer to consider why it wishes to require a medical examination. The ADA does not prevent employers from following recommendations by CDC regarding whether, when, and for whom testing (or other medical screening) is appropriate, because following CDC recommendations will meet the ADA “business necessity” standard.  For a discussion of screening testing for employees generally, see A.6.  For a discussion of taking temperature as a screening mechanism, see A.3.  Employers should not engage in unlawful disparate treatment based on protected characteristics in deciding who is subject to medical examinations.

A.10. May an employer ask an employee who is physically coming into the workplace whether they have family members who have COVID-19 or symptoms associated with COVID-19? (Updated 5/15/23)

No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about family members. For example, GINA prohibits employers from asking employees to provide their family members’ medical examination results, including COVID-19 test results. GINA, however, does not prohibit an employer from asking employees whether they have had contact with “anyone” diagnosed with COVID-19 or who may have symptoms associated with the disease. Moreover, from a public health perspective, only asking about an employee’s contact with family members would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19.  Employers should not engage in unlawful disparate treatment based on protected characteristics in deciding who is asked about possible exposure to persons with COVID-19.

A.11. What may an employer do under the ADA if an employee refuses to permit the employer to take the employee’s temperature or refuses to answer questions about whether the employee has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19? (Updated 5/15/23)

An employer may ask employees if they have COVID-19, common symptoms of COVID-19 as identified by CDC, or have been tested for COVID-19 (and if so, ask about the result).  See A.1. and A.8.  An employer also may take an employee’s temperature or require a COVID-19 viral test as long as these medical examinations meet the ADA’s “business necessity” standard.  See A.3., A.6., and A.9.  If an employee refuses to cooperate by answering these questions or taking these medical examinations, an employer may take whatever action it deems appropriate, consistent with its applicable policies or procedures (e.g., barring an employee from physical presence in the workplace or otherwise working closely with others).

To gain the cooperation of employees, however, employers may wish to ask the reasons for the employee’s refusal. For example, the employer may be able to provide information or reassurance that they are taking these steps to ensure the safety of everyone in the workplace, and that these steps are consistent with health screening recommendations from CDC. Sometimes, employees are reluctant to provide medical information because they fear an employer may widely spread such personal medical information throughout the workplace. The employer may reassure the employee that the ADA prohibits disclosure of employee medical information with limited exceptions. Alternatively, if an employee requests reasonable accommodation with respect to screening, the usual accommodation process should be followed; this is discussed in Question G.7.

A.12. May an employer request information from an employee who reports feeling ill while on the job with symptoms associated with COVID-19, in order to protect the rest of its workforce and others (e.g., customers) with COVID-19? (Updated 5/15/23)

Yes.  If an employee who works on-site (or otherwise works in close proximity to others),  reports feeling ill while on the job, an employer may ask whether the employee has COVID-19 or  common symptoms of COVID-19 as identified by CDC.  If the employee has COVID-19 or symptoms of the disease, the employer may follow any CDC-recommended period of isolation with respect to when an employee may return to the workplace or otherwise work in close proximity to others. See A.4., which also addresses following a CDC-recommended period of isolation. Employers must maintain all information about an employee’s illness as a confidential medical record in compliance with the ADA.

 . . . .

A.14. When an employee returns from travel during the COVID-19 pandemic, must an employer wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled? (Updated 5/15/23)

No. Questions about where a person traveled would not be disability-related inquiries. Employers may wish to consult current CDC guidance regarding domestic or international travel for recommendations on what precautions, if any, are advisable after returning from certain destinations.  If an employer wishes to require a medical examination (e.g., requiring a COVID-19 viral test), it must meet the ADA’s “business necessity” standard.  See A.6. and A.9.

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B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee's temperature or the employee's self-identification as having this disease, or must the employer create a new medical file system solely for this information? (Updated 5/15/23)

The ADA requires that all medical information about a particular employee be stored separately from the employee's personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee's statement that the employee has the disease or suspects so, or the employer's notes or other documentation from questioning an employee about symptoms. Similarly, information about an employee having Long COVID must also be treated as confidential. For information on confidentiality and COVID-19 vaccinations, see K.4.

 . . .

C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? (Updated 5/15/23)

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.  

In addition, if an employer screens everyone for COVID-19 (i.e., screens all applicants, employees, contractors, and visitors because anyone potentially might have COVID-19) before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19.  It is also permissible to screen a subset of applicants pre-offer if they fall into a specific category of individuals (including employees and others) that are subject to COVID-19 screening.  For example, if everyone entering a particular building on campus must undergo COVID-19 screening, an employer also may subject an applicant entering this building to the same screening, even though such screening is not routinely done when entering other buildings.  But note, an employer should not use this COVID-19 screening as an opportunity, pre-offer, to also ask applicants disability-related questions and/or to conduct medical examinations that may only be done post-offer. For information on the ADA rules governing such inquiries and examination, see Section A.

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D.7. If there is some urgency to providing an accommodation, may an employer provide a temporary accommodation? (Updated 5/15/23)

Yes. Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the "interactive process" (discussed in D.5 and D.6., above) and grant the request. In addition, changes in government restrictions may affect the need for accommodations. Changes in how an employer conducts the interactive process may be necessary to suit changing circumstances based on current public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the temporary accommodation (for example, a specific date such as “May 30”). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a disability that puts the employee at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

If an employee requests an extension of a temporary accommodation, the employer must consider it. The employer may take into account current circumstances, including the employee’s current disability-related needs and any applicable  government restrictions or public health directives).

D.8. May an employer invite employees to ask for reasonable accommodations they may need in the future in advance of a return to the workplace? (Updated 5/15/23)

Yes. Employers may inform the entire workforce that employees with disabilities may request accommodations in advance that they believe they may need when returning to the workplace either part-time or full-time. This is discussed in greater detail in Question G.6. If advance requests are received, employers may begin the "interactive process"—the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed. If an employee chooses not to request accommodation in advance, and instead requests it at a later time, the employer must still consider the request at that time.

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D.10. May an employer consider circumstances related to the COVID-19 pandemic when determining if a requested accommodation poses "significant difficulty" (and therefore would be an undue hardship)? (Updated 5/15/23)

An employer may consider whether current circumstances related to the COVID-19 pandemic create "significant difficulty" in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. For example, it may be significantly more difficult to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. If a particular accommodation poses an undue hardship due to circumstances related to the pandemic, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

D.11. May an employer consider circumstances related to the COVID-19 pandemic when  determining if a requested accommodation poses "significant expense" (and therefore would be an undue hardship)? (Updated 5/15/23)

Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer's overall budget and resources (always considering the budget/resources of the entire entity and not just its components). Current pandemic conditions make it less likely that they would be the foundation for finding  “significant expense,” although an employer may consider any pandemic-related circumstances that could be relevant at the time the employer is making an undue hardship assessment.  But, consideration of any relevant pandemic-related reasons does not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account any constraints created by this pandemic. Even under pandemic-related circumstances, there may be many no-cost or very low-cost accommodations that effectively meet the employee’s disability-related needs.

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D.19.  What are examples of reasonable accommodations that may assist employees with Long COVID? (5/15/23)

The possible types of reasonable accommodations to address various symptoms of Long COVID vary, depending on a number of factors, including the nature of the symptoms, the job duties, and the design of the workplace.  Some common reasonable accommodations include: a quiet workspace, use of noise cancelling or white noise devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath.  The Job Accommodation Network has information on a variety of possible reasonable accommodations to address specific symptoms of Long COVID. 

D.20.  As a result of the end of the COVID-19 Public Health Emergency on May 11, 2023, may employers automatically terminate reasonable accommodations that were provided due to pandemic-related circumstances? (5/15/23)

No.  This emergency declaration dealt with issues involving health care coverage and access to treatment.  It did not address the ADA and Rehabilitation Act requirements regarding provision of reasonable accommodation.  Therefore, the end of this Public Health Emergency declaration does not automatically provide grounds to terminate reasonable accommodations that continue to be needed to address on-going pandemic-related circumstances (e.g., continued high risk to individuals with certain disabilities if they contract COVID-19).  However, an employer may evaluate accommodations granted during the public health emergency and, in consultation with the employee, assess whether there continues to be a need for reasonable accommodation based on individualized circumstances.  Consistent with the ADA’s “business necessity” standard, this evaluation may include a request for documentation that addresses why there may be an ongoing need for accommodation and whether alternative accommodations might meet those needs.    

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E.2. Are there steps an employer should take to address possible harassment and discrimination against employees in connection with the pandemic? (Updated 5/15/23)

Yes. An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex (including sexual orientation, gender identity, and pregnancy), religion, age (40 or over), disability, or genetic information. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may want to provide illustrations of pandemic-related harassment for supervisors, managers, and all other employees to help them understand what actions may violate the EEO laws. For example, one illustration might show a supervisor or coworker violating the ADA/Rehabilitation Act by harassing an employee with a disability-related need to wear a mask or take other COVID-19 precautions. Another illustration might show a supervisor or coworker violating Title VII by harassing an employee who is receiving a religious accommodation to forgo mandatory vaccination. (See E.3. for an additional example of pandemic-related harassment.) Finally, an employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

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G.1. As government restrictions are imposed, lifted, or modified during the course of the pandemic, how will employers know what steps they can take consistent with the ADA to screen employees for the virus that causes COVID-19 when entering the workplace?  (Updated 5/15/23)

The ADA permits employers to make disability-related inquiries and conduct medical exams to screen employees for COVID-19 when entering the workplace if such screening is “job-related and consistent with business necessity.”  For more information on disability-related inquiries and medical examinations, see Section A.  For information on reasonable accommodation requests related to screening protocols, see G.7.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

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K.2. What are some examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated due to disability; religious beliefs, practices, or observance; or pregnancy?  (Updated 5/15/23)

An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.  For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19 (provided testing is consistent with the ADA “business necessity” standard for medical examinations; see A.6.), be given the opportunity to telework, or finally, accept a reassignment. 

Employees who choose not to be vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees.  These modifications may be the same as the accommodations made for an employee based on disability or religion.

 . . .

K.16. Does the ADA limit the value of the incentive employers may offer to employees for receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)? (Updated 5/15/23)

No.  If the health care provider administering a COVID-19 vaccine is not the employer or its agent the ADA does not limit the incentives (which includes both rewards and penalties) an employer may offer to encourage employees to receive a COVID-19 vaccination, or to provide confirmation of vaccination. This is because the ADA’s rules about when disability-related inquiries may be asked and medical examinations required only apply when it is the employer or its agent asking the questions or requiring the medical exam.  See K.9.  By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive.  See K.17.  Even if an employer requires employees to receive vaccination or provide confirmation of vaccination, as long as it is not required to be administered by the employer or its agent, the ADA does not limit the value of incentives offered, whether rewards or penalties. 

As noted in K 4., the employer is required to keep vaccination information confidential under the ADA.

 . . .

N.1. How does the ADA define disability, and how does the definition apply to COVID-19 and Long COVID? (Updated 5/15/23)

The ADA’s three-part definition of disability applies to COVID-19 and Long COVID in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:

“Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);

“Record of” a Disability: The person has a history or “record of” an actual disability (such as cancer that is in remission); or

“Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

The definition of disability is construed broadly in favor of expansive coverage, to the maximum extent permitted by the law. Nonetheless, not every impairment will constitute a disability under the ADA. The ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability.”

COVID-19, Long COVID, and the ADA

“Actual” Disability

N.2. When is COVID-19 or Long COVID an actual disability under the ADA? (Updated 5/15/23)

Applying the ADA rules stated in N.1. and depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 or Long COVID has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 or Long COVID substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances.

A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA. However, depending on the specific facts involved in a particular employee’s medical condition, an individual with COVID-19 might have an actual disability, as illustrated below.

Physical or Mental Impairment: Under the ADA, a physical impairment includes any physiological disorder or condition affecting one or more body systems. A mental impairment includes any mental or psychological disorder. COVID-19 and Long COVID are physiological conditions affecting one or more body systems. As a result, they are each a “physical or mental impairment” under the ADA.

Major Life Activities: “Major life activities” include both major bodily functions, such as respiratory, lung, or heart function, and major activities in which someone engages, such as walking or concentrating. COVID-19 or Long COVID may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In some instances, COVID-19 or Long COVID also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. An impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting. However, limitations in more than one major life activity may combine to meet the standard.

Substantially Limiting: “Substantially limits” is construed broadly and should not demand extensive analysis. COVID-19 or Long COVID need not prevent, or significantly or severely restrict, a person from performing a major life activity to be considered substantially limiting under Title I of the ADA.

The limitations from COVID-19 or Long COVID do not necessarily have to last any particular length of time to be substantially limiting. They also need not be long-term. For example, in discussing a hypothetical physical impairment resulting in a 20-pound lifting restriction that lasts or is expected to last several months, the EEOC has said that such an impairment is substantially limiting. App. to 29 C.F.R. § 1630.2(j)(1)(ix). By contrast, “[i]mpairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.” Id.

Mitigating Measures: Whether COVID-19 or Long COVID substantially limit a major life activity is determined based on how limited the individual would have been without the benefit of any mitigating measures—i.e., any medical treatment received or other step used to lessen or prevent symptoms or other negative effects of an impairment. At the same time, in determining whether COVID-19 or Long COVID substantially limits a major life activity, any negative side effects of a mitigating measure are taken into account.

Some examples of mitigating measures for COVID-19 include medication or medical devices or treatments, such as antiviral drugs, supplemental oxygen, inhaled steroids and other asthma-related medicines, breathing exercises and respiratory therapy, physical or occupational therapy, or other steps to address complications of COVID-19.  Examples of mitigating measures for Long COVID include medication or treatment, respiratory therapy, physical therapy, and mental health therapy.

Episodic Conditions: Even if the symptoms related to COVID-19 or Long COVID come and go, COVID-19 or Long COVID is an actual disability if it substantially limits a major life activity when active.

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N.4. What are some examples of ways in which an individual with COVID-19 might or might not be substantially limited in a major life activity? How can Long COVID substantially limit a major life activity? (Updated 5/15/23)

As noted above, while COVID-19 may substantially limit a major life activity in some circumstances, someone infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to the common cold or flu that resolve in a matter of weeks—with no other consequences—will not be substantially limited in a major life activity for purposes of the ADA. Based on an individualized assessment in each instance, examples of fact patterns include:

Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:

An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.

An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.

An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.

An individual diagnosed with “Long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA.

Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:

An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.

An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.

As noted above, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.

For information on possible services and supports for individuals with Long COVID, see the report issued by the U.S. Dept. of Health and Human Services.

“Record of” Disability

N.5. Can a person who has or had COVID-19 or Long COVID be an individual with a “record of” a disability? (Updated 5/15/23)

Yes, depending on the facts. A person who has or had COVID-19 or Long COVID can be an individual with a “record of” a disability if the person has “a history of, or has been misclassified as having,” 29 C.F.R. § 1630.2(k)(2)   an impairment that substantially limits one or more major life activities, based on an individualized assessment.

“Regarded As” Disability

N.6. Can a person be “regarded as” an individual with a disability if the person has COVID-19 or Long COVID, or the person’s employer mistakenly believes the person has COVID-19 or Long COVID? (Updated 5/15/23)

Yes, depending on the facts. A person is “regarded as” an individual with a disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19 or Long COVID, or the employer mistakenly believes the person has such an impairment, unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. For this definition of disability, whether the actual or perceived impairment substantially limits or is perceived to substantially limit a major life activity is irrelevant.

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N.11. When an employee requests a reasonable accommodation related to COVID-19 or Long COVID under the ADA, may the employer request supporting medical documentation before granting the request? (Updated 5/15/23)

Yes. As with employment accommodation requests under the ADA for any other potential disability, when the disability or need for accommodation is not obvious or already known, an employer may ask the employee to provide reasonable documentation about disability and/or need for reasonable accommodation. Often, the only information needed will be the individual’s diagnosis and any restrictions or limitations. The employer also may ask about whether alternative accommodations would be effective in meeting the disability-related needs of the individual. See WYSK Questions D.5. and D.6. for more information.

The employer may either ask the employee to obtain the requested information or request that the employee sign a limited release allowing the employer to contact the employee’s health care provider directly. If the employee does not cooperate in providing the requested reasonable supporting medical information, the employer can lawfully deny the accommodation request.

N.12. May an employer voluntarily provide accommodations requested by an applicant or employee due to COVID-19 or Long COVID, even if not required to do so under the ADA? (Updated 5/15/23)

Yes. Employers may choose to provide accommodations beyond what the ADA mandates. Of course, employers must provide a reasonable accommodation under the ADA, absent undue hardship, if the applicant or employee meets the definition of disability, requires an accommodation for the disability, and is qualified for the job with the accommodation. Accommodations might consist of schedule changes, physical modifications to the workplace, telework, or special or modified equipment. See, e.g., WYSK Section D or U.S. Department of Labor Blog, Workers with Long COVID-19: You May Be Entitled to Workplace Accommodations for more information.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.