Although the number of Covid-19 cases varies throughout the United States, nonprofit leaders are undoubtedly eager to re-open organizations and get back to business. While many continue to allow some staff to work remotely, others choose to or must have employees working in the physical workspace to service clients and stakeholders.
In re-opening their physical workspace, nonprofit employers must consider and navigate a multitude of workplace laws and risks. High among those legal risks are those involving employees with underlying medical conditions. This article addresses some of these risks, and provides some recommendations.
Failure to Reasonably Accommodate a Disability Under the ADA
Nonprofit organizations may see an increase in employee claims of a failure to reasonably accommodate a disability and other types of discrimination claims in connection with returning to the workplace. Such claims are filed with the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency enforcing the Americans with Disabilities Act (ADA), which celebrated the 30th anniversary of its passage in 2020. In fact, in the EEOC’s Fiscal Year 2020 (which ended on September 30), disability discrimination claims represented the largest percentage of employee charges filed with the agency, after retaliation claims. Employee complaints might also be filed with state and local anti-discrimination agencies under state and local anti-discrimination laws, and/or in court.
An upsurge in employee complaints might occur due to employers denying accommodations for workers with underlying health conditions that put them at greater risk of contracting Covid-19. Employees may also pursue complaints that employers unlawfully barred them from returning to the workplace, because of an employer’s concern about an employee’s susceptibility to contracting the virus.
There are also potential legal risks to an employer for firing an employee who refuses to return to the physical workplace due to an underlying medical condition, depending on the particular facts. Under the ADA, covered employers (those with 15 or more employees) have a legal obligation to reasonably accommodate an employee’s disability unless doing so poses an undue hardship on the employer. If an employee refuses to return to work because of an underlying medical condition putting them at a greater risk of contracting Covid-19, an employer must engage in an interactive, good faith process to find a reasonable accommodation that permits the employee to perform the essential functions of the job unless doing so poses an undue hardship on the employer.
The EEOC has issued updated pandemic preparedness guidance entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws (Technical Guidance).
Significantly, the Technical Guidance addresses some reasonable accommodations EEOC officials believe might meet the needs of an employee with an underlying medical condition that puts the employee at greater risk of contracting Covid-19. Absent undue hardship to the employer, those accommodations might include the following:
- Designating one-way aisles.
- Implementing safety protocols/policies that include requiring anyone in the workplace to wear cloth face coverings over nose and mouth, social distance of at least six feet, and enhanced cleaning and sanitizing required of those in the workplace (and providing soap and/or hand sanitizer so that it is readily available).
- Using plexiglass, tables, or other barriers to ensure minimum distances between clients and co-workers where feasible per the Centers for Disease Control and Prevention (CDC) guidance.
- Other accommodations that reduce chances of exposure to Covid-19.
- Temporary job restructuring of marginal job duties.
- Temporary transfers to a different position.
- Modifying a work schedule or shift assignment to allow an employee with a disability to safely perform the essential functions of the job while reducing exposure to others.
Depending on the particular facts, a reasonable accommodation might include allowing an employee with an underlying medical condition to continue working remotely, as requested, if it allows the person to perform the essential functions of the job and does not pose an undue hardship on the employer. The Job Accommodation Network, an organization which provides resources to those with disabilities, has some examples of accommodations an employer might consider, where appropriate, for an employee with Covid-19-related symptoms.
Employers should also be mindful that employees with pre-existing mental or psychological conditions—such as an anxiety disorder, severe depression, obsessive-compulsive disorder, or post-traumatic stress disorder exacerbated by the Covid-19 pandemic—may also seek (and be entitled to) reasonable accommodations to enable them to perform the job’s essential functions, where the pre-existing conditions rise to the level of a disability. As with any accommodation request, under the ADA, covered employers may ask questions to determine whether the condition is a disability; discuss how the requested accommodation would assist and enable that worker to perform the essential functions of the job; explore alternative, effective accommodations; and request medical documentation substantiating the need for the reasonable accommodation sought.
Employees already receiving accommodations for disabilities might be entitled to an additional or modified accommodation upon return to the workplace. For instance, an employee with low vision might need certain accommodations to adapt to floor plan reconfigurations that were implemented to ensure physical distancing due to Covid-19 such as one-way hallways. Deaf, hard-of-hearing or lip-reading employees could need a modification to cloth face coverings. Other types of reasonable accommodations may be needed for employees with certain medical conditions. Employers should be mindful about ensuring that employees are not retaliated against for seeking or receiving reasonable accommodations, as retaliation is also unlawful. Indeed, retaliation claims by employees represented more than 55 percent of all EEOC charges filed in FY 2020.
If an employer is unable to provide a reasonable accommodation for a disability because doing so would pose an undue hardship, that employer should document the basis for the undue hardship. Under the ADA, “undue hardship” must be based on an assessment of current circumstances that show that a specific reasonable accommodation would cause “significant difficulty or expense.” For disabled employees who are teleworking during the pandemic, the question of whether an employer must continue providing the same accommodations to them as were provided when the employees worked in a physical workspace is going to be a fact-specific inquiry. The EEOC has noted in its Technical Guidance that “undue hardship considerations might be different when evaluating a request for accommodation when teleworking rather than working in the workplace.” Note, however, that states and localities may have anti-discrimination laws that have a different or higher standard for an employer to demonstrate “undue hardship.” Covered employers need to ensure they are complying with state and local anti-discrimination legal requirements in addition the ADA.
The EEOC has further noted that the ADA does not permit employers to bar employees from returning to work or take other adverse employment actions solely because an employee has an underlying medical condition that the CDC might consider as posing a “higher risk for severe illness” if the person contracts Covid-19. Therefore, under the ADA, a covered employer may not legally prohibit an employee from returning to the workplace to keep them safe, even when they are known to have underlying medical conditions or are at heightened risk from Covid-19, unless that employee’s disability poses a “direct threat” to his/her health that cannot be eliminated or reduced through a reasonable accommodation.
Under the ADA, in order to determine whether an employee poses a “direct threat” to themselves or others, employers must conduct an individualized assessment based on relevant factors and make a determination of whether the threat can be reduced or eliminated through a reasonable accommodation. The EEOC advises flexibility by employers and employees in determining if some accommodation for a disability is possible in these circumstances.
Health Screening/Taking Temperatures
There are potential legal issues around health screening and temperature checks of employees. The EEOC’s guidance shows that—based on guidance from the CDC and public health authorities—the Covid-19 pandemic qualifies as a “direct threat” within the meaning of the ADA. In its updated Technical Guidance, the EEOC gave employers a “green light” under the ADA to conduct “medical examinations,” such as temperature checking, testing for Covid-19, and asking employees if they currently have symptoms associated with Covid-19, to determine whether a particular employee may pose a direct threat due to infection. Some states are mandating that employers take employees’ temperatures before those employees enter the workplace.
Keeping Medical Information Confidential
Employers, by law, must ensure they are keeping health screening information confidential, if the employer takes employees’ temperatures and records those temperatures, conducts questionnaires of employees, or conducts other health screening addressing employee medical information. Any such records or reports should be kept in a locked cabinet, with access only to those with a need-to-know, and separate from any personnel file. Employers might even consider adopting a threshold test (i.e., below 100 degrees Fahrenheit) for determining an acceptable temperature rather than recording the actual temperature.
Additionally, while employers should inform employees of possible exposure to Covid-19 if a co-worker or a person on site is confirmed to have contracted the Covid-19 virus, they must not disclose the identity of the employee who contracted the virus. Employers are legally bound to maintain the confidentiality of an employee’s medical information. However, that prohibition would not preclude an employer from disclosing the employee’s identity to state or local public health authorities to prevent the spread of Covid-19.
Employees can be asymptomatic and without fever while still carrying the virus, so a temperature check might not always be an effective screen for the virus. Conversely, employees may present with symptoms though they are not infected with Covid-19. Employers conducting Covid-19 testing should ensure any such testing is undertaken consistent with current medical knowledge and the best available objective evidence, including by selecting tests with reasonably confirmed rates of accuracy and by strictly following test manufacturers’ guidelines and instructions for use. Employers should continue to review the CDC’s website for updates on Covid-19 symptoms as more is learned about the virus.
Other Types of Discrimination Claims
In addition to potential claims of a failure to reasonably accommodate a disability, there are other types of discrimination claims that may arise as employees return to the workplace. For instance, employers should be mindful of potential age discrimination claims. The EEOC has warned that employers may not bar older workers from returning to work due to an employer’s fear that an older worker might be more susceptible to getting Covid-19 or even an employer’s benevolence in wanting to protect an older worker. Barring older workers from returning to work because of their age would likely constitute age discrimination under the Age Discrimination in Employment Act (ADEA) and likely also violate state or local anti-discrimination laws prohibiting age discrimination.
Employers, likewise, may not lawfully delay start dates of new hires or withdraw job offers because of a person’s legally-protected status (such as pregnancy or age—i.e., older than 65), merely because that employee might be at higher risk of contracting Covid-19. Employers should exercise care around these issues to avoid claims of sex, pregnancy or age discrimination or claims of failure to reasonably accommodate a disability under federal, state and/or local laws.
Some employers may seek to have employees vaccinated before returning to the workplace. Employers that require employees to be vaccinated must provide exemptions for those who cannot or will not get vaccinated because of a medical condition or sincerely held religious belief. As noted above, under the ADA, employers must provide reasonable accommodations to employees due to disability unless providing a reasonable accommodation would pose an undue hardship on the organization or present a direct threat to workplace health or safety. Similarly, under a federal law known as Title VII of the Civil Rights Act of 1964, as amended (Title VII), employers with fifteen or more employees must also reasonably accommodate employees’ sincerely held religious beliefs unless doing so poses an undue hardship.
The EEOC in its Technical Guidance notes that where an employer institutes a safety-related job requirement like vaccination and the vaccination requirement “screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’” The EEOC guidance advises employers to conduct an “individualized assessment” to determine whether a direct threat exists. If the employer concludes there is a direct threat that the unvaccinated employee will expose other employees at the worksite to the virus, the employer “cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.”
Again, where an employee cannot get a Covid-19 vaccine due to a disability or sincerely held religious belief, covered employers must engage in a good faith interactive process to determine a reasonable accommodation for that employee unless doing so would pose an undue hardship on the organization. Under Title VII, “undue hardship” means something more than a “de minimis” burden or cost.
State and Local Laws
Be aware of state and local laws. State and local laws requiring reasonable accommodation of a disability might define a “disability” more broadly than under the ADA, impose broader burdens on employers with respect to the nature and scope of the interactive process to determine a reasonable accommodation for disabilities and sincerely held religious beliefs, and have a stricter definition of “undue hardship” than under the ADA or Title VII.
For instance, according to the New York City Commission on Human Rights’ guidance on Covid-19 and human rights, under the New York City Human Rights Law (NYCHRL), an employer must engage in a cooperative dialogue with an employee when it knows or has reason to know that the employee may require a reasonable accommodation. This process includes a dialogue about the person’s accommodation needs and potential accommodations that may address those needs. Therefore, the Commission, which enforces the NYCHRL, has taken the position that if an employer knows that an employee has a medical condition that might place the employee at “higher risk for severe illness” if contracting Covid-19, the employer must engage in the cooperative dialogue process with that employee even if the employee has not requested a reasonable accommodation. This requirement in New York City goes further than what the ADA requires. The NYCHRL also imposes a more stringent standard than the ADA or Title VII for employers to demonstrate an “undue hardship” as a basis for denying a request for a reasonable accommodation.
Tips on Mitigating Legal Risk
Re-opening a physical workplace during a pandemic is certainly not risk-free. But nonprofit organizations can take concrete actions now to help mitigate some legal risks concerning employees with underlying medical conditions and others seeking reasonable accommodations during the pandemic. Possible actions may include:
- Keep abreast of and adhere to EEOC, state and local anti-discrimination/reasonable accommodation guidance and changes in the law, including state or local requirements to provide paid sick leave for Covid-19 related sickness and time off for employees to get a Covid-19 vaccination.
- Be flexible in arriving at reasonable accommodations.
- Engage in a good faith, interactive process with an employee seeking a reasonable accommodation due to disability or sincerely held religious belief.
- Document the reasonable accommodation process, cooperative dialogue (where required), and the outcome of the process, including the basis for any undue hardship defense where an employee’s request for a reasonable accommodation is denied.
- Conduct an individualized assessment of a “direct threat” to health or safety of the employee or others before concluding that an employee who cannot get a vaccine due to medial or religious reasons may not return to the workplace.
- Re-issue policies on reasonable accommodation and anti-retaliation to employees, reminding employees of the policies and process to request reasonable accommodations, and also update sick, paid time off, and leave of absence policies, as needed.
- Train managers on an employer’s legal obligations with respect to reasonable accommodations and how to effectively recognize a request for a reasonable accommodation and handle it, how to prevent and identify retaliation and how to enforce the policy prohibiting it, and legal obligations regarding handling of employee medical information.
- Before their return to the workplace, communicate with employees who are currently receiving reasonable accommodations, about additional or modified accommodations needed, where applicable and permitted.
- Ensure medical information like temperature taking, testing results, employee questionnaire and vaccination results regarding Covid-19 symptoms are kept confidential.
Finally, nonprofit managers would be well-advised to consult with their employment counsel before taking any adverse employment actions.
 The Commission considers actual or perceived infection with Covid-19 to be a disability and therefore employers may not treat employees less favorably than others or harass them because of an actual or perceived infection with Covid-19, or based on an actual or perceived history of such infection.
Lisa M. Brauner, Esq. (she/her/hers) email@example.com, is an employment law partner at the law firm of Schnader Harrison Segal & Lewis LLP. Lisa focuses in the area of employment law, specifically advising and representing nonprofit organizations in workplace law-related matters. Lisa counsels and advises employers in many aspects of the employment relationship, including avoidance of litigation, wage/hour compliance, preventing unlawful discrimination, harassment, and retaliation, reductions-in-force, lawful hiring and terminations, disability, pregnancy and religious reasonable accommodation issues, as well as compliance with federal, state and local laws and regulations. Lisa has extensive experience representing and defending employers in court, including successfully first-chairing both jury and bench trials, and responding to EEOC and other governmental agency charges and audits.
Articles on Blue Avocado do not provide legal representation or legal advice and should not be used as a substitute for advice or legal counsel. Blue Avocado provides space for the nonprofit sector to express new ideas. Views represented in Blue Avocado do not necessarily express the opinion of the publication or its publisher.