COVID-19 and Workplace Liability: Selected Issues Under Antidiscrimination Laws

COVID-19 and Workplace Liability: Selected Issues Under Antidiscrimination Laws

Legal Sidebari

COVID-19, Workplace Accommodations, and
Federal Antidiscrimination Statutes:
Selected Issues
May 18, 2020
The COVID-19 pandemic has forced unprecedented workplace changes and raised a host of legal issues.
Employers may struggle with how to protect workers from infection, including whether to make any
special changes for at-risk employees. Employers may worry about workers’ well-being, disruptions from
absenteeism, and potential liability if an employee falls ill. Federal law requires reasonable
accommodations for one risk group, people with disabilities. At the same time, antidiscrimination statutes
restrict employers from singling out employees based on three characteristics that put them at enhanced
risk, or impose uncertain risk, for COVID-19: disability, age, or pregnancy. This Sidebar provides general
background on antidiscrimination considerations that might arise as employers consider accommodations
for at-risk employees.
Reasonable Accommodations for At-Risk Employees Under the
Americans with Disabilities Act and the Rehabilitation Act
The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (applying ADA standards
to federal employers) protect applicants and employees from disability discrimination. Not everyone with
a medical condition has a disability, and some characteristics that may place a person at greater risk of
serious illness from COVID-19 infection, such as being an older adult, have not previously qualified as
disabilities for ADA and Rehabilitation Act purposes.
The ADA defines disability as an “impairment that substantially limits one or more major life activities,”
and the Rehabilitation Act employs a substantially similar definition. The Equal Opportunity Employment
Commission (EEOC), charged with enforcing the two statutes, has taken the view that it is not yet clear
whether coronavirus infection or risk of infection amounts to a disability. The uncertainty is
understandable—much remains unknown or speculative about the disease and about how various
employers may seek to curb workplace infections as businesses reopen. And it may be possible to argue
that a characteristic that does not amount to a disability under normal conditions is a disability now,
because of an accompanying COVID-19 risk. Courts have yet to address these questions. The ADA and
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Rehabilitation Act, however, protect people with substantially limiting conditions, including some
conditions that put them at greater risk for severe COVID-19 illness, such as moderate to severe asthma,
serious heart disease, and immunosuppression (including in HIV).
Federal law bars employers from taking adverse action against a worker because of disability. At the same
time, the law requires employers to provide requested reasonable accommodations unless they would
impose an undue hardship on the employer. Disability law calls for an “interactive process” tailoring the
accommodation to the employee’s and employer’s needs. This individualized exchange reflects the
disability and workplace circumstances. Generally, the interactive process begins with the employee. The
employee should request an accommodation if he or she believes it is needed. Indeed, the ADA and
Rehabilitation Act restrict employers from initiating some disability inquiries.
During the COVID-19 emergency, employers must still consider accommodation requests and engage in
the interactive process. With this in mind, an employee whose disability puts her at risk might request
temporary job restructuring, work at home, distancing from coworkers or customers, or other measures.
Leave requests are common, applicable accommodations even in COVID-19-free times, and the EEOC
has issued guidance for employees who request leave as an accommodation. In general, the ADA requires
managers to allow an employee with a disability the same leave privileges permitted other employees. In
addition, as an accommodation, an employer should provide a reasonable amount of unpaid leave, unless
this imposes an undue hardship. Factors for determining whether leave is a reasonable accommodation
include the amount of leave, its scheduling, effects on coworkers, and the impact on workplace
operations.
There are instances, in the context of the COVID-19 pandemic, when an employer could likely exclude an
employee from the workplace rather than accommodate her disability. Enabling this response is an
important, little-used exemption in the ADA: the “direct threat” exception. Under it, employers need not
accommodate employees with disabilities if their presence would create a “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 has concluded that this provision applies in pandemic circumstances,
allowing employers to exclude infected employees from work. The exception might justify refusal to
accommodate uninfected employees who are at higher risk of serious illness if infected by the coronavirus
on account of a disability, but only after an individualized, objective assessment of the risk’s duration and
magnitude, together with any potential, mitigating accommodations. More generally, the EEOC clarified
that “[t]he ADA and the Rehabilitation Act do not interfere with employers following advice from the
[Centers for Disease Control and Prevention (CDC)] and other public health authorities on appropriate
steps to take relating to the workplace.”
The Age Discrimination in Employment Act (ADEA)
Other groups not necessarily covered by the ADA and Rehabilitation Act also face increased risk of
severe COVID-19 illness. People over 65 are among these, and so employers may consider making
workplace changes to protect older workers. But laws protecting older employees differ from disability
laws; the ADEA has no accommodation provisions. The EEOC has stated that an employer need not grant
older employees’ requests for special precautionary measures in response to the COVID-19 pandemic.
What is more, the ADEA bars employers from taking adverse action against an employee or applicant
“because of” age. So employers generally cannot single out older workers and alter their employment
conditions. The EEOC has explained that, under the statute, employers may not send older workers home
and put them on mandatory telework or involuntary leave because of increased COVID-19 susceptibility.
That said, voluntary actions (such as offering work at home or schedule changes) and neutral actions
(such as spacing out workstations for older workers when the stations are equivalent) would generally not

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violate the ADEA. This is because an ADEA claimant must identify a “materially adverse” employment
action before making a complaint.
Nor does the ADEA prevent employers from giving older workers employment advantages denied
younger workers. Thus, an employer may afford workers over 65 special protections, such as telework
opportunities, flexible schedules, protective equipment, or options for social distancing. Younger
employees left without these advantages cannot claim age discrimination.
The Pregnancy Discrimination Act
To date, the CDC advises that data suggest pregnant people have the same COVID-19 risk as other adults.
But the CDC recommends pregnant women protect themselves from infection.
The Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964,
bars employers from singling out pregnant workers for adverse action. Like the ADEA, the PDA does not
expressly require accommodation. It mandates pregnant women “be treated the same ... as other persons
not so affected but similar in their ability or inability to work.” Even in pandemic circumstances, the PDA
limits employers’ unilateral efforts to shield pregnant workers from perceived risk. In the EEOC’s view,
managers cannot furlough a pregnant worker, postpone her start date, or rescind an employment offer,
even if the employer cites concerns about COVID-19 infection.
At the same time, employers cannot deny pregnant women pandemic-related adjustments—such as leave,
flexible schedules, protective gear, or work at home—granted other employees with a similar ability to
work. And if a pregnancy-related complication is so limiting that it amounts to a disability, whether or not
tied to the pandemic, the pregnant employee enjoys ADA protections.
Considerations for Congress
Congress has recently enacted measures that would provide pandemic-related leave for many workers.
The Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security
Act allow additional leave tailored to COVID-19 circumstances. Other CRS products describe these
provisions. Congress has also recognized special, pandemic-related needs of the elderly and those with
disabilities in provisions for funding public housing.
In considering the enhanced risk or uncertain risk faced by older workers, pregnant women, and people
with disabilities, Congress may consider changing federal employment measures as well. There is still
much uncertainty about how accommodation provisions of the ADA and Rehabilitation Act apply in
pandemic circumstances. Their focus on individualized assessments makes it hard to predict how
employers, agencies, and courts will apply them to COVID-19 risks. In addition, it may be hard for
employers to make some of the required decisions and evaluations quickly, because the interactive
process allows for back-and-forth communication, input from medical providers, and case-specific
analysis. To facilitate a more uniform response, Congress might opt to specify whether or not COVID-19
infection or infection risk is a disability under existing law.
Alternatively, Congress could address pandemic workplace concerns with independent legislation that
provides specific rules for COVID-19-related practices including testing, leave, reassignment, protective
equipment, the interactive process for accommodation, and social distancing at work. Congress might
modify restrictions on employers asking disability-related questions to facilitate infection control and
response to risk factors.
Finally, Congress could consider recalibrating the class of employees entitled to accommodations. New
laws might require managers to accommodate and protect older employees, pregnant employees, and
those with nondisabling medical conditions that put them at unique risk during the COVID-19 pandemic.

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Another approach would be to authorize employers to decide for themselves whether to impose
prophylactic measures on older, disabled, and pregnant workers, adjusting antidiscrimination laws that
currently limit different treatment.

Author Information

April J. Anderson

Legislative Attorney

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