Sixth Circuit Rejects Attempt to Expand ADA Interference Clause and §1985 Conspiracy Claim to Non-Employer

On Friday, the Sixth Circuit Court of Appeals affirmed summary judgment in an ADA and §1985 conspiracy action brought against a hospital by a former nurse of a group physician practice which had employed her.   Post v. Trinity Health-Michigan, No. 21-2844 (6^th Cir. 8/12/22).  After her employer terminated her (claiming budgetary reasons) and filed for bankruptcy, the nurse filed suit against the hospital where her had performed her duties alleging that she had been terminated on account of her disability and that the hospital had interfered with her ADA rights and conspired with her employer to terminate her in violation of the ADA.   The Courts found that the ADA – including the interference clause – only applied to employers, which the Hospital was not.  Further, it similarly concluded that §1985 only applied to constitutional causes of action and certain protected classes and could not overlap with statutory causes of action under the ADA. “[A] plaintiff can assert a claim of interference with employment-related rights under § 12203(b) only against an employer (or the few other entities listed in 42 U.S.C. § 2000e[1]5(b)).”

According to the Court’s opinion, the plaintiff nurse had been employed by the defendant hospital for a number of years.  However, the hospital outsourced her department to a physician group practice, terminated her employment and she continued to work in the same rooms, but for the group practice instead of the hospital.  At some point, she suffered a concussion while at work, received workers compensation and attempted to recover enough to return to work.  However, she lost her hospital privileges while she was off work and neither her employer, nor the hospital would permit her to practice her craft in a simulation room prior to returning to work as suggested by her treating physician.   Her employer also would not certify her ability to return to work under the circumstances as necessary to regain her hospital privileges.  Ultimately, she was terminated by the practice for budgetary reasons and the practice filed for bankruptcy shortly thereafter.  Unable to sue her employer, she brought suit against the Hospital for interfering with her ADA rights and for conspiring to deprive her of rights under the ADA.   Oddly enough, she never alleged that the hospital was a joint employer with the group practice.

The ADA’s interference clause does not explicitly apply to employers:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter. 42 U.S.C. § 12203(b).

It also applies to other ADA sections governing the government and public accommodations.  Could this, for example, apply to people who illegally park in spaces reserved for the handicapped? However, the Court found the structure of the ADA  and the remedial section’s incorporation by reference to Title VII (which only applies to employers) clarified that the interference clause only applied to employers (and others not at issue in this litigation).   

            Both the plain text of the ADA and our precedent on a related question rebut [the plaintiff’s] boundless reading. These sources instead demonstrate that, in this employment setting, the interference provision authorizes suits only against employers (and a few other entities that are irrelevant in this case).

                . . . .

To summarize things in reverse: Title VII permits suit only against employers (and a few other irrelevant entities). 42 U.S.C. § 2000e-5(b), (f)(1). The ADA’s employment subchapter adopts Title VII’s remedial framework. Id. § 12117(a). And the ADA’s interference provision, in turn, adopts the employment subchapter’s remedial framework when a suit raises an employment complaint. Id. § 12203(c). The statutory chain of cross-references thus leaves no doubt that the interference provision in § 12203(b) likewise permits suit only against employers.

The Court also analogized the interference section to the retaliation section, which applies to “persons,” which the Court had earlier held only applied to employers.  While the Court indicated that it might have been willing to entertain a joint-employer theory, she never alleged such a theory and thus, waived that argument.

Section 1985 is a reconstruction era statute signed by President Grant to fight the KKK.   One of its long clauses, contains a 255-word sentence creating a damages action against those who, as relevant here, “conspire” “for the purpose of depriving” “any person or class of persons” of “the equal protection of the laws” or “equal privileges and immunities under the laws[.]” 42 U.S.C. § 1985(3).”

This claim fails because [the plaintiff] has not shown that any conspiracy deprived her of the “equal protection of the laws” or the “equal privileges and immunities under the laws[.]” 42 U.S.C. § 1985(3). To avoid turning § 1985(3) into a generic tort law covering any injury inflicted by two parties, the Supreme Court has interpreted these two phrases to require “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” . . . But our court has substantially limited any non-race-based theory. We have held that § 1985(3) reaches only conspiracies targeting a person based on a classification (like racial discrimination) that would receive heightened scrutiny under the Supreme Court’s equal-protection framework. See . . . . Unfortunately for [the plaintiff], this holding means that § 1985(3) does not “cover” conspiracies grounded in “disability-based discrimination” because that type of discrimination is subject to deferential rational-basis review.

The Court refused to consider differing precedent in other Circuits without a superior decision from the en banc court or the Supreme Court.  In any event, §1985 typically requires some action by the state (i.e., government) to have a cause of action, but the nurse had only sued a private hospital.   In addition, the Supreme Court had previously “cautioned against allowing a plaintiff to use § 1985(3) to enforce a right” that was governed and precluded by Title VII “when the remedial limits in that statute would bar the plaintiff from suing directly under it.”

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 Rejects FMLA Interference Claim When Employee Was Fired for Missing Work Due to Isolation Order During 2020 Pandemic

Last month, the Sixth Circuit Court of Appeals affirmed the dismissal of an employee’s FMLA interference claim when she was fired after missing work for three weeks because of an upper respiratory infection during the COVID pandemic after her physician had advised her to stay home for 10 days and the Health Board advised her to self-quarantine because she had been exposed to COVID. Nuttal v. Progressive Parma Care Center LLC, No. 21-4199 (6^th Cir. 7/26/22).   The Court excused the employer’s failure to provide her with new FMLA eligibility or designation notices and concluded that she could not show interference with FMLA leave because she had not given her employer notice that she suffered from a serious health condition that incapacitated her or required continuing care from a physician by simply referring to her physician’s direction or the isolation order.   She had never been incapacitated and did not require continued medical care.  She had already been provided with eligibility notices with prior FMLA requests within the year and her eligibility had not changed.  A designation notice was not required until she provided a medical certification, which was never received.  Because she had already been on notice of her FMLA rights and obligations, she could not show that she had been prejudiced by the lack of a designation notice.  Interestingly, the Court never addresses the Families First Cornavirus Relief Act and how notice of an isolation order could trigger the FMLA.    

According to the Court’s opinion, in March 2020, the plaintiff developed an upper respiratory infection after being exposed to COVID.  Her physician advised her to remain home for 10 days and the Board of Health directed her to remain home until she had been symptom free for 72 hours and 1 week after symptoms first appeared.  She immediately notified her supervisor that she needed time off work.  She advised HR a few days later and was directed to use her accrued vacation and then apply for unemployment.  In early April, she asked her physician to send HR a letter about needing to remain home, but it was apparently never sent.  She continued to keep her employer informed and expressed concern about contracting COVID and her hesitancy to return to work.  On April 17, she was released to return to work and immediately informed her employer, which had already posted her job and told her that she was no longer needed.   

The plaintiff filed suit on the grounds that the employer never provided with her the required FMLA notices and interfered with her FMLA leave.  The trial court found that the plaintiff had not given adequate notice of her intent to take FMLA leave, that the employer provided required notice and she could not show the failure to provide an additional notice interfered with her FMLA leave.

The Sixth Circuit focused exclusively on the regular FMLA regulations and never cited to the Families First Cornavirus Relief Act, which was enacted by March 19, 2020:

A “serious health condition” is an illness that involves “continuing treatment by a health care provider.” 29 U.S.C. § 2611(11)(B). Illnesses like the common cold and the flu, which can be treated with bed rest, fluids, and over-the-counter medication, generally do not qualify as serious health conditions. 29 C.F.R. § 825.113(c)–(d). “Calling in ‘sick’ without providing more information will also not be considered sufficient notice to trigger an employer’s obligations under the Act.” Id. § 825.303(b).

The plaintiff alleged that she had been her employer on notice when she texted her supervisor that she had been directed by her physician to quarantine for two weeks, sent a copy of the Health Board’s isolation order and provided her physician’s contact information in case HR required more information. 

But she told them nothing about the severity of her illness—which in fact did not require continuing treatment by her doctor. See id. § 825.115(a)(1). . . . . . In short, Nuttall gave no indication that she sought time off because she had a serious health condition that incapacitated her. She thus cannot make out a prima facie case that Parma Care Center interfered with her rights under the FMLA.

As for the lack of eligibility notice, she had already been sent two such notices within the prior 12 months and her eligibility had not changed.  “When ‘an employee provides notice of a subsequent need for FMLA leave’ within 12 months ‘due to a different FMLA-qualifying reason, and the employee’s eligibility status has not changed, no additional eligibility notice is required.’ Id. § 825.300(b)(3).”    However, the employer apparently never notified her with 12-month period it was using – meaning that she was entitled to rely on the 12-month period most advantageous to her under 29 C.F.R. § 825.200(e).  Since a new calendar year had started since her last FMLA request, she asserted that a new eligibility notice was required because she would have provided the medical certification form if it had ever been requested.

The Court was unimpressed.  It concluded that the prior FMLA notices had adequately informed her  of her rights and obligations:

[She] has not presented evidence that a FMLA notice in 2020 would have made a difference. Her choice in 2019 to fill out the FMLA paperwork—even though she states she did not ultimately take FMLA leave—is evidence that she knew her FMLA rights and the FMLA process. And without taking FMLA leave in 2019, no 12-month period could start, so the calculation method chosen by Parma Care Center is irrelevant. Simply put, [her] failure to provide evidence that Parma Care Center’s lack of notice in the 2020 calendar year precluded her from completing the same paperwork again for her respiratory illness is fatal to her claim.  Her knowledge of her FMLA eligibility in 2019 precludes the possibility of harm, even if the center had to provide notice.

Because Nuttall cannot prove that Parma Care Center’s alleged lack of notice actually caused her harm, she cannot prove yet another one of the elements needed for a prima facie case of FMLA interference, and her claim fails. We need not address the other elements.

The Court never indicates why the FFCRA did not apply in this case and it seems likely that the employer was a large employer with over 500 employees.

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 Compensation Denied When Physician Indicated Claimant Had No Work Restrictions But Would Know When to Leave Job

 Last week, a divided Franklin County Court of Appeals affirmed the denial of unemployment compensation to a claimant who had given notice of resignation and then a week later failed to return to work. Boynton v. Ohio Dept. of Job & Family Servs., 2022-Ohio-2597.   The Court found that the employee did not have “just cause” to resign her position because she had failed to first attempt to resolve any issues with her employer before submitting her resignation.   Moreover, her physician had stated that he had not placed her on work restrictions or advised her to quit her job, rendering her medical complaints irrelevant. 

According to the Court’s opinion, the claimant had worked as a cashier for a retail establishment for a few years.  Because of, among other things, lower back pain, her employer had accommodated all of her requests, including reducing her work hours and permitting her to rest one leg on a basket.   However, one day, she indicated that she was giving her two-week notice of resignation for several reasons, including to care for her ill fiancé, her low back pain and dissatisfaction with the employee rewards system.  After a disagreement with a co-worker a week later, however, she informed the manager about her emotional distress, and left work early.  She later told her manager that she would not be returning to finish her two-week notice because of COVID concerns. 

The Court noted that employees cannot receive unemployment compensation following a voluntary resignation unless they had just cause to resign

"Traditionally, just cause, in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act." Rider v. Dir., Ohio Dept. of Job & Family Servs., 10th Dist. No. 16AP-854, 2017-Ohio-8716, ¶ 9. Under this standard, " 'an employee is required to cooperate with the employer to resolve work-related problems. * * * If the employee does not cooperate or give the employer sufficient time to accommodate the employee's needs [and] concerns, that employee will usually not be found to have just cause if he or she quits.' " . . . " 'Essentially, an employee must notify the employer of the problem and request it be resolved, and thus give the employer an opportunity to solve the problem before the employee quits the job; those employees who do not provide such notice ordinarily will be deemed to quit without just cause, and, therefore, will not be entitled to unemployment benefits.' "

The claimant did not dispute that she failed to discuss her reasons for resignation with her employer before her resignation, except with respect to her medical ailments.   However, again, there was no evidence that she had ever indicated that the accommodations that she had requested and been provided were inadequate prior to her resignation (although there was evidence that the accommodations had not resolved her back pain issues).   She had provided with her unemployment application a statement from her treating physician that he had never placed her on work restrictions or advised her to resign, but that she would know when it was time to leave.

The ODJFS found that she lacked good cause to resign because she had not attempted to resolve with her employer any of these three issues before giving notice.  The Court’s majority found that there was adequate evidence in the record to support this conclusion. 

The dissent found that the physician’s comment that “she will know when it is time to not work anymore” satisfied her burden of proving good cause because it was clear no reasonable accommodation would be possible to permit her to continue working as a cashier.  The employer also had been on notice that her prior accommodations had not solved the issue with her back pain, but made no further suggestions.    Further, the dissent would not penalize her for leaving work prior to the completion of her two-week notice because she had been unwell and was legitimately concerned about COVID. 

Court Rejects Employer’s Attempt at Two-Bites at the Same Apple When Challenging ULP

Last week, the Sixth Circuit rejected the attempt of a government contractor to avoid an unfair labor practice charge by claiming that it was a joint employer entitled to the benefit of the NLRA exemption for the federal government.  Bannum Place of Saginaw LLC, v. NLRB, No. 21-2664 (6th Cir. 7-14-22).   The employer first raised the argument -- that the federal Bureau of Prisons so regulated its operations under their service contract that the employer constituted a joint employer with the federal government – when the union sought recognition.  However, the employer failed to appeal the Regional Director’s decision rejecting the argument and the NLRB refused to entertain – or relitigate -- the issue when the same employer was then subject to an ULP Charge arising out of that same, or related, election. 29 C.F.R. § 102.67(g).  The Court agreed that courts will defer to the NLRB’s refusal to relitigate legal issues which the party could have but failed to appeal to the Board during the representation phase.  In any event, “because Congress has unambiguously limited the reach of the exemption in § 2(2) to governmental entities and wholly owned government corporations, this court will not extend the exemption to government contractors.”

The Court observed that the no-re-litigation rule only applies when the second proceeding is related to the representation issue when the argument was first raised and then not appealed.  However, the employer could not successfully argue that this ULP was unrelated to the earlier representation proceeding for the first time on appeal because the employer failed to raise the unrelatedness argument before in the underlying ULP proceeding.   The Court will only consider arguments that had first been made to the NLRB.

The employer also failed to point to any new circumstances that could have justified re-litigation of the issue during the ULP phase.

The employer then argued that its joint employer argument went to the NLRB’s statutory jurisdiction and could not be waived.   However, the Court found that this argument would likewise fail because the NLRA did not address joint employment and only exempted certain types of employers, including the federal government.  The Supreme Court had earlier rejected a similar argument by a hospital which claimed its lease with a state government made it a government subdivision.  Other circuit courts had likewise rejected arguments to expand the reach of the limited exemptions:

As the Tenth Circuit held, “because Congress has unambiguously limited the reach of the exemption in § 2(2) to governmental entities and wholly owned government corporations, this court will not extend the exemption to government contractors.”

. . .

In sum, even if Bannum’s contract vests in the BOP substantial control over Bannum’s daily operations, that does not transform the company from a covered employer into either a governmental entity or a wholly owned government corporation and thus beyond the Board’s reach.

 

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.

Just When You Thought It Was Safe To Get Back in the Water, EEOC Revises COVID/ADA Guidance

 Yesterday, the EEOC posted updated COVID guidance concerning employment issues involving the pandemic and the Americans With Disabilities Act.  The updated guidance – which is substantial and affects a wide number of issues -- is posted below.  In its announcement, the EEOC update only mentioned one of the changes, involving whether an employer can always require COVID testing at work:

 EEOC’s assessment at the outset of the pandemic was that the ADA standard for conducting medical examinations was, at that time, always met for employers to conduct worksite COVID-19 viral screening testing. With the revision of A.6, below, on July 12, 2022, EEOC makes clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19. A.6. offers employers possible factors to consider in making this assessment, including community transmission levels and types of contacts between employees and others in the workplace. This change is not meant to suggest that such testing is or is not warranted; rather, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.

These are the updated Q&As from the EEOC:

A.5. When an employee returns to the workplace after being out with COVID-19, does the ADA allow employers to require a note from a qualified medical professional explaining that it is safe for the employee to return (i.e., no risk of transmission) and that the employee is able to perform the job duties? (Updated 7/12/22)

Yes. Alternatively, employers may follow CDC guidance to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional.

When an employee returns to the workplace after being out with COVID-19, the ADA allows an employer to require confirmation from a qualified medical professional explaining that the individual is able to safely return. Such a request is permitted under the ADA. First, because COVID-19 is not always a disability, a request for confirmation may not be a disability-related inquiry. Alternatively, if the request is considered a disability-related inquiry, it would be justified under the ADA standard requiring that such employee inquiries be job-related and consistent with business necessity. Here, the request meets the “business necessity” standard because it is related to the possibility of transmission and/or related to an employer’s objective concern about the employee’s ability to resume working. For example, an employer may require confirmation from a medical professional addressing whether an employee may resume specific job duties requiring physical exertion.

As a practical matter, employers may wish to consider other ways to determine the safety of allowing an employee to return to work if doctors and other healthcare professionals are unable to provide such documentation either in a timely manner or at all. This might include reliance on local clinics to provide a form, a stamp, or an e-mail to confirm that an individual is no longer infectious and is able to resume working.

A.6. Under the ADA, may an employer, as a mandatory screening measure, administer a COVID-19 viral test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace? (Updated 7/12/22)

Yes, if the employer can show it is job-related and consistent with business necessity.

A COVID-19 viral test is a medical examination within the meaning of the ADA. Therefore, if an employer implements screening protocols that include COVID-19 viral testing, the ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity.” Employer use of a COVID-19 viral test to screen employees who are or will be in the workplace will meet the “business necessity” standard when it is consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing. Be aware that CDC and other public health authorities periodically update and revise their recommendations about COVID-19 testing, and FDA may revise its guidance or emergency use authorizations, based on new information and changing conditions.

A positive viral test result means that the test detected SARS-CoV-2, the virus that causes COVID-19, at the time of testing, and that the individual most likely has a current infection and may be able to transmit the virus to others. A negative test result means the test did not detect SARS-CoV-2 at the time of testing. However, a negative test does not mean the employee does not have any virus, or will not later get the virus. It means only that the virus causing SARS-CoV-2 was not detected by the test.

If an employer seeks to implement screening testing for employees such testing must meet the “business necessity” standard based on relevant facts. Possible considerations in making the “business necessity” assessment may include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19. In making these assessments, employers should check the latest CDC guidance (and any other relevant sources) to determine whether screening testing is appropriate for these employees.

Note: Question A.6. and A.8. address screening of employees generally. See Question A.9. regarding decisions to test only individual employees.

A.7. Under the ADA, may an employer require antibody testing before permitting employees to re-enter the workplace? (Updated 7/12/22)

No. An antibody test, as a medical examination under the ADA, must be job-related and consistent with business necessity. As of July 2022, CDC guidance explains that antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection; as a result, it should not be used to determine whether an employee may enter the workplace. Based on this CDC guidance, at this time such testing does not meet the ADA’s “business necessity” standard for medical examinations or inquiries for employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. An antibody test is different from a test to determine if someone has evidence of infection with SARS-CoV-2 or has COVID-19 (i.e., a viral test). The EEOC addresses COVID-19 viral screening tests in A.6.

C.1. If an employer is hiring, may it screen applicants for symptoms of COVID-19? (Updated 7/12/22)

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 (i.e., applicants, employees, contractors, visitors) for 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. The screening is limited to the same screening that everyone else undergoes; an employer that goes beyond that screening will have engaged in an illegal pre-offer disability-related inquiry and/or medical examination. For information on the ADA rules governing such inquiries and examination, see Section A.

C.4. May an employer withdraw a job offer when it needs an applicant to start working immediately, whether at the worksite or in the physical presence of others outside of the worksite, because the individual has tested positive for the virus that causes COVID-19, has symptoms of COVID-19, or has been exposed recently to someone with COVID-19? (Updated 7/12/22)

An employer should consult and follow current CDC guidance that explains when and how it would be safe for an individual who currently has COVID-19, symptoms of COVID-19, or has been exposed recently to someone with COVID-19, to end isolation or quarantine and thus safely enter a workplace or otherwise work in the physical presence of others. An employer who follows current CDC guidance addressing the individual’s situation may withdraw the job offer if (1) the job requires an immediate start date, (2) CDC guidance recommends the person not be in proximity to others, and (3) the job requires such proximity to others, whether at the workplace or elsewhere. Given that for some individuals there may only be a short period of time required for isolation or quarantine, employers may be able to adjust a start date or permit telework (if job duties can be performed remotely).

C.5. May an employer postpone the start date or withdraw a job offer because of the employer’s concern that the individual is older, pregnant, or has an underlying medical condition that puts the individual at increased risk from COVID-19? (Updated 7/12/22)

No. An employer’s concern for an applicant’s well-being -- an intent to protect them from what it perceives as a risk of illness from COVID-19 -- does not excuse an action that is otherwise unlawful discrimination. The fact that CDC has noted that older adults, people with certain medical conditions, or pregnant and recently pregnant people may be at greater risk of severe illness from COVID-19 does not justify unilaterally postponing the start date or withdrawing a job offer. Therefore, an employer may not discriminate based on age (40 or older) or pregnancy and related conditions. If an underlying medical condition is a disability, an employer must determine whether the individual’s disability poses a “direct threat” by starting work immediately and, if so, whether reasonable accommodation can be provided to sufficiently lessen or eliminate any risks without causing an undue hardship. For more information on assessing direct threat and reasonable accommodation in this situation, see G.4. and G.5. For more information on potential issues regarding discrimination based on age or pregnancy, see Sections H and J.

D.17. Might the pandemic result in excusable delays during the interactive process? (Updated 7/12/22)

Yes. Some of the issues initially created by the pandemic that delayed engaging in an interactive process and/or providing reasonable accommodation may no longer exist. But, as the pandemic continues to evolve and new issues arise, it is possible that an employer may face new challenges that interfere with responding expeditiously to a request for accommodation. Similarly, reopening a workplace may bring a higher number of requests for reasonable accommodation. In all these situations, an employer must show specific pandemic-related circumstances justified the delay in providing a reasonable accommodation to which the employee was legally entitled. To the extent that evolving circumstances created by the pandemic cause a justifiable delay in the interactive process–thereby delaying a decision on a request–employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

D.18. Federal agencies are required to have timelines in their written reasonable accommodation procedures governing how quickly they will process requests and provide reasonable accommodations. What happens if circumstances created by the pandemic prevent an agency from meeting this timeline? (Updated 7/12/22)

Situations created by the current COVID-19 pandemic may constitute an “extenuating circumstance”—something beyond a federal agency’s control—that may justify exceeding the normal timeline that an agency has adopted in its internal reasonable accommodation procedures.

Some of the issues initially created by the pandemic that delayed engaging in an interactive process and/or providing reasonable accommodation may no longer exist. But, as the pandemic continues to evolve and new issues arise, it is possible that an agency may face new challenges that interfere with responding to a request for accommodation within an agency’s timeline. Similarly, reopening a workplace may bring a higher number of requests for reasonable accommodation. In all these situations, an agency must show specific pandemic-related circumstances that constitute an “extenuating circumstance.” To the extent that there is an extenuating circumstance, agencies and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

G.1. As government restrictions are lifted or modified , 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 7/12/22)

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.

G.2. An employer requires workers to wear personal protective equipment and engage in other infection control practices. Some employees ask for accommodations due to a disability or a sincerely held religious belief, practice, or observance that affects the ability to wear personal protective equipment and/or engage in other infection control practices. How should an employer respond? (Updated 7/12/22)

In most instances, federal EEO laws permit an employer to require employees to wear personal protective equipment (PPE) (for example, masks and/or gloves) and observe other infection control practices (for example, regular hand washing or physical distancing protocols). Some employers may need to comply with regulations issued by the Occupational Safety and Health Administration (OSHA) that require the use of PPE. OSHA regulations do not prohibit the use of reasonable accommodations under the EEO laws as long as those accommodations do not violate OSHA requirements. Employers also may follow current CDC guidance about who should wear masks.

Regardless of the reason an employer requires PPE (or other infection control measures), when an employee with a disability needs a reasonable accommodation under the ADA to comply with an employer’s requirement to wear PPE (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or when an employee requires a religious accommodation under Title VII (such as modified or alternative equipment due to religious attire or grooming practices), the employer should discuss the request and provide accommodation (either what is requested by the employee or an alternative that is effective in meeting the employee’s needs) if it does not cause an undue hardship on the operation of the employer's business under the ADA or Title VII. For general information on reasonable accommodation under the ADA, see Section D.

G.3. What does an employee need to do in order to request reasonable accommodation from an employer because the employee has one of the medical conditions that CDC says may put a person at higher risk for severe illness from COVID-19? (Updated 7/12/22)

An employee—or a third party, such as an employee’s doctor—must let the employer know that the employee needs a change for a reason related to a medical condition . Individuals may request accommodation orally or in writing. While the employee (or third party) does not need to use the term “reasonable accommodation” or reference the ADA, the employee may do so.

The employee or the employee’s representative should communicate that the employee has a medical condition necessitating a change to meet a medical need. After receiving a request, the employer may ask questions or seek medical documentation to help decide if the individual has a disability—not all medical conditions meet the ADA’s definition of “disability”—and if there is a reasonable accommodation, barring undue hardship, that can be provided. For additional information on reasonable accommodation under the ADA, see Section D. For information on pregnancy-related disabilities covered under the ADA, see J.2. For general information on reasonable accommodation requests related to a sincerely held religious belief, practice, or observance, see K.12.

G.4. CDC identifies a number of medical conditions that are more likely to cause people to get severely ill if they get COVID-19. An employer knows that an employee has one of these conditions and is concerned that the employee’s health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation. How does the ADA apply to this situation? (Updated 7/12/22)

The ADA does not mandate that the employer take action in this situation if the employee has not requested reasonable accommodation. Also, an employer’s duty to provide reasonable accommodation applies only if an employee has an actual disability or a record of a disability, as defined in the ADA; this means not every individual with one of the medical conditions that might place them at higher risk of COVID-19 complications will automatically satisfy these ADA definitions of disability.

Assuming the employee has a “disability” as discussed above, if the employer is concerned that the health of an employee with a disability may be jeopardized upon returning to the workplace, the ADA generally does not allow the employer to exclude the employee—or take any other adverse action—because the employee has a disability that CDC identifies as potentially placing the employee at higher risk for severe illness if the employee gets COVID-19. Under the ADA, such an adverse action is not allowed unless the employee’s disability poses a “direct threat” to the employee’s health or safety that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard. As an affirmative defense for the employer, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to the employee’s own health or safety, or that of others in the workplace under 29 C.F.R. section 1630.2(r) (regulation addressing direct threat to health or safety of self or others). A direct threat assessment cannot be based solely on the disability being identified in CDC’s guidance; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability—not the disability in general—using the most current medical knowledge and/or on the best available objective evidence. Thus, an employer analyzing a potential direct threat must consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and the employee’s particular job duties. A determination of direct threat also would include whether the employee is up to date on vaccinations and the likelihood that an individual may be exposed to the virus at the worksite. Measures that an employer may be taking in general to protect all workers, such as mandatory physical distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a “significant risk of substantial harm” to the employee’s own health or safety, the employer still cannot exclude the employee from the workplace—or take any other adverse action—unless there is no way to provide a reasonable accommodation (absent undue hardship). The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or sufficiently reduce the risk so that it would be safe for the employee to return to the workplace, while still permitting the employee to perform the essential functions of the job.

An employer’s consideration of a possible reasonable accommodation should involve an interactive process with the employee. If there are no accommodations in an employee’s current position that sufficiently reduce or eliminate direct threat in the workplace, then an employer must consider accommodations such as telework, leave, or—as a last resort—reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).

An employer may only bar an employee from working based on the direct threat analysis if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to the employee’s own health or safety that cannot be reduced or eliminated by reasonable accommodation. For general information on reasonable accommodation under the ADA (i.e., where an individual’s request for reasonable accommodation has nothing to do with potential direct threat concerns), see Section D.

G.5. What are examples of reasonable accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self or others? (Updated 7/12/22)

Reasonable accommodations that may eliminate (or reduce to an acceptable level) a direct threat to self or others may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to, or require from, employees returning to its workplace. Reasonable accommodations also may include additional or enhanced protective measures, such as High Efficiency Particulate Air (HEPA) filtration systems/units or other enhanced air filtration measures, erecting a barrier that provides separation between an employee with a disability and coworkers/the public, or increasing the space between an employee with a disability and others. Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position). In addition, accommodations may include telework, modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting), or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more physical distancing).

These are only a few ideas. Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace. An employer and employee should discuss possible ideas; the Job Accommodation Network (www.askjan.org) also may be able to assist in helping identify possible accommodations. As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible. For general information on reasonable accommodation under the ADA, see Section D.

G.6. As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements? (Updated 7/12/22)

Yes. The ADA, the Rehabilitation Act, and Title VII of the Civil Rights Act do not prohibit employers from making information available in advance to all employees about whom to contact—if they wish—to request reasonable accommodation that they may need for a disability or a sincerely held religious belief, practice or observance upon return to the workplace. Once requests are received, the employer may begin the interactive process. An employer may choose to include in such a notice all medical conditions identified in CDC guidance that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about whom to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions which may qualify as disabilities.

Alternatively, an employer may send a general notice explaining that the employer is willing to consider employee requests for reasonable accommodation for employees with a disability or a sincerely held religious belief, practice, or observance, or to consider flexibility on an individualized basis for employees not eligible for reasonable accommodation (e.g., employees who request flexibility due to age). The employer should specify if the point of contact is different depending on whether the request is based on disability, sincerely held religious beliefs, pregnancy, age, or child-care responsibilities.

Either approach is consistent with the Age Discrimination in Employment Act (ADEA), the ADA, the Rehabilitation Act, and Title VII.

Regardless of the approach, employers should ensure that those employees who receive, review, or process these requests are sufficiently trained in how to handle them in accordance with the federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a disability or a sincerely held religious belief, observance, or practice; or a request related to pregnancy. For additional information on reasonable accommodation under the ADA/Rehabilitation Act, see Section D.

H.1. CDC has explained that the risk for severe illness with COVID-19 increases with age, with older adults at the highest risk. Do older adults have protections under the federal employment discrimination laws? (Updated 7/12/22)

Yes. The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older. The ADEA would prohibit a covered employer from excluding an individual involuntarily from the workplace based on being older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19. For more information on postponing a start date or withdrawing a job offer due to older age, see C.5.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for workers due to age. However, employers are free to provide flexibility to older workers; the ADEA does not prohibit this, even if it results in younger workers being treated less favorably based on age in comparison.

Older workers also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities. As such, they may request reasonable accommodation for their disability.

K.1. Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees to be vaccinated against COVID-19? (Updated 7/12/22)

The federal EEO laws do not prevent an employer from requiring all employees to be vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. (See also Section L, Vaccinations – Title VII Religious Objections to COVID-19 Vaccine Requirements). If there is such an employer requirement, the EEO laws do not prevent employers from requiring documentation or other confirmation that employees are up to date on their vaccinations (see K.9.), but the EEO laws may require employers to make exceptions to a vaccination requirement for some employees.

The ADA and Title VII require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6.) or for religion (see K.12.).

As with any employment policy, employers that have a vaccination requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act [40+]). Employers should keep in mind that because some individuals or demographic groups may face barriers to receiving a COVID-19 vaccination, some employees may be more likely to be negatively impacted by a vaccination requirement.

It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.

K.4. Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA? (Updated 7/12/22)

Yes. The ADA requires an employer to maintain the confidentiality of employee medical information. Although the EEO laws do not prevent employers from requiring employees to provide documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

An employer may share confidential medical information, such as confirmation of employee vaccinations (or COVID-19 test results), with employees who need it to perform their job duties. However, such employees also must keep the information confidential. Some possible scenarios include:

· An administrative employee assigned to perform recordkeeping of employees’ documentation of vaccination may receive needed access to the information for this purpose but must keep this information confidential.

· An employee assigned to permit building entry only by employees who are in compliance with a work restriction, such as COVID-19 vaccinations, testing, and/or masking, should only receive a list of the individuals who may (or may not) enter, but not any confidential medical information about why they are on (or not on) the list.

· An employee tasked to ensure compliance with a testing requirement for employees would need to review testing documentation submitted by those employees but must keep that testing information confidential.

Mandatory Employer Vaccination Programs

K.5. May an employer require an employee to comply with a COVID-19 vaccination requirement applicable to all employees entering the workplace if that employee has sought an exemption based on disability? (Updated 7/12/22)

Under the ADA, an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID-19 vaccination, if the standard is job-related and consistent with business necessity as applied to that employee. An employer does not have to show that a qualification standard in general (i.e., as applied to all employees) meets the “business necessity” standard. Under the ADA it must satisfy this standard only as applied to an employee who informs the employer that a disability prevents compliance. If a particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others while performing their job. A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. 1630.2(r). This determination can be broken down into two steps: determining if there is a “significant risk of substantial harm” and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.

To determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. The factors that make up this assessment are: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. Such medical knowledge may include, for example, the level of community spread at the time of the assessment. Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee. Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.

If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat. Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.

As a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis. (See also K.12 recommending the same best practice for religious accommodations.)

K.16. Does the ADA limit the value of the incentive employers may offer to employees for voluntarily 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 7/12/22)

No. The ADA does not limit the incentives (which includes both rewards and penalties) an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination, or to provide confirmation of vaccination, if the health care provider administering a COVID-19 vaccine is not the employer or its agent. 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.

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

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.