Coronavirus, ADA, & Employees: What Can Employers ask?

Posted by Alesha Struthers Feb 24, 2021

As we enter into our second year of coronavirus, many employers have questions regarding what they can and cannot ask their employees according to the Americans with Disabilities Act (ADA). In this article, the Law Offices with Alesha Struthers will share with Washington state employers the guidance offered by the U.S. Equal Employment Opportunity Commission to answer some of the most common (and confusing) situations that arose during the last year.

For specific guidance related to human resources-related and management-related matters for your Washington business, schedule your free consultation with the Law Offices of Alesha Struthers now. We enjoy helping our clients better understand human resources law and employment law!

What Is Covered Under the Americans with Disabilities Act?

The Americans with Disabilities Act (ADA) is a federal law that protects an individual with a condition that is considered a disability. The ADA itself does not have a conclusive list of disabilities. A disability is defined as "a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment." There is a further definition of "physical or mental impairment" as a physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systemics, such as neurological, musculoskeletal, special sense organs, respiratory (including those affecting speech), cardiovascular, reproductive, digestive, genitourinary, immune system, circulatory, hemic, lymphatic, skin, and endocrine. The ADA also covers mental and psychological disorders including intellectual disabilities, organic brain disorders, emotional disturbances, mental illnesses, and specific learning disabilities.

While there isn't a list of conditions mentioned under the ADA, the regulations do list specific medical conditions that are considered a disability under the meaning of the law:

  1. Deafness
  2. Blindness
  3. Diabetes
  4. Cancer
  5. Epilepsy
  6. Intellectual disabilities
  7. Partial or completely missing limbs
  8. Mobilities impairments that require the use of a wheelchair
  9. Autism
  10. Cerebral palsy
  11. HIV
  12. Multiple sclerosis
  13. Muscular dystrophy
  14. Major depressive disorder
  15. Bipolar disorder
  16. PTSD
  17. OCD
  18. Schizophrenia

Conditions that are not considered impairments and excluded include:

  1. Compulsive gambling
  2. Kleptomania
  3. Pyromania
  4. Exhibitionism
  5. Voyeurism
  6. Pedophilia
  7. Physical characteristics
  8. Common personality traits
  9. Psychoactive substance use disorders resulting from illegal drug use

It is important for all employers to understand the basics of the Americans with Disabilities Act since many employees may contract the coronavirus, take time off to care for a loved one, or be exposed to it. Additionally, as an employer, you already know (or should know) that the questions you can ask related to your employees' health, disabilities, and medical conditions was (and is) limited. With the coronavirus pandemic, ADA-qualified employees may have certain rights under the law.

Updated ADA Guidance for Washington Employers

The coronavirus pandemic has affected Washington employers and employees for more than a year. The Americans with Disabilities Act was, for many Washington employers, tricky ground about what could and couldn't be asked about medical conditions and disabilities, especially if an employee took time off. While none of us exactly knew how to plan (or face) a pandemic, the additional time off, the potential for other accommodations, as well as what can and can't be asked (or done) in relation to the COVID-19 vaccine doesn't make things any easier. In this section, the Law Offices of Alesha Struthers will explain some of the guidance provided by the federal government.

Pandemic-related Symptoms

Washington employers are generally not allowed to make inquiries related to an applicant's disability, medical condition, or medical exams before making a conditional job offer. Once an employee is hired, disability-related questions and medical exams, must be related to their job as well as a necessity related to the business. Yet, we all know that coronavirus is highly contagious. So, what about pandemic-related symptoms? As an employer, how much information can you try to get from an ADA-covered employee who calls in sick to try and protect the rest of your employees?

The short answer is that you are allowed to ask if they have pandemic-related symptoms. COVID-19 symptoms include fever, chills, cough, shortness of breath, sore throat, loss of smell, and loss of taste. You can learn more about COVID-19 symptoms on the CDC's website.

You must keep this information in the strictest of confidence as it pertains to medical information of an employee.  You must remain in compliance with the Americans with Disabilities Act.

If you have employees presenting with symptoms, the ADA does allow you as an employer to require employees to leave the workplace and stay home. The ADA does not interfere with the CDC's advice on this matter. COVID-19 can endanger those with and without compromised immune systems.

What About Asking for a Doctor's Note?

If you have an ADA-covered employee who was off of work, you are allowed to request a doctor's note that certifies them as fit to return to work. Doing so does not violate the ADA. Do keep in mind that it may be difficult for some employees to secure a doctor's note due to the sheer number of COVID-19 appointments booked by healthcare professionals. Use your best judgment and be willing to consider accepting forms, stamps, and emails that are certified by the employee's healthcare professional as opposed to a physical note.

Are You an Employer in Washington State?

As an employer in Washington state, it can be difficult to know what you should and shouldn't do both at the state and federal level to remain in compliance while also helping to protect your employees during COVID-19. The laws seem to change so quickly, but you don't have to do it alone. The Law Offices of Alesha Struthers provide free consultations to Washington employers to help them understand and embrace employment law and human resources best practices while also navigating tricky ADA scenarios during the pandemic. To learn how we can help your business, schedule a consultation now!

Disclaimer: This publication is not legal advice. It is intended as legal information only. For legal advice specific to your needs, contact the Law Offices of Alesha Struthers, PS at 800-972-0411.

Posted February 2021