For better or worse, people are finding themselves required to return to work even in the midst of the COVID-19 pandemic. In an effort to try and mitigate the risk, the Equal Employment Opportunity Commission (EEOC) has updated its guidance on the Americans With Disabilities Act (ADA). They’ve made changes that both articulate testing procedures and clarify the rights of anyone who contracts the condition. Here’s what you need to know about complying with the ADA during the COVID-19 pandemic.
Maintaining Confidentiality Is Key
The Americans With Disabilities Act was passed in 1990 to protect the rights of disabled people, with Title I specifically dealing with discrimination in the workplace. Disability under the ADA is defined as a physical or mental impairment which “substantially limits” one or more major life activities. If an employee or a potential employee has a disability that fits these criteria, an employer may not use it as a reason to discriminate in any way, shape, or form. However, they are permitted to ask for certain medical information related to that employee’s disability.
The ADA permits an employer to request certain medical information that may discuss an employee’s disability. For example, some positions require a wellness exam before starting work, or the employer may have a voluntary health program that collects information from employees with consent. However, the law requires that all disability-related medical information be kept confidential, with rare exceptions. This can pose problems if a disabled person contracts COVID-19.
If you are a disabled employee and are unfortunate enough to contract COVID-19, you may find that more of your medical information is suddenly accessible to your employer. The EEOC has held that employers are allowed to make inquiries and conduct medical exams (such as temperature checks or antibody tests for coronavirus) that may implicate disability-related information. It seems this will be allowed for the foreseeable future, because an employer is permitted under the ADA to exclude any employee who may pose a “direct threat” to others. COVID-19 is most definitely a “direct threat.”
In other words, normally, an employer may not perform mandatory medical exams like temperature checks on employees returning to work, because doing so could violate the ADA’s confidentiality provisions. However, the COVID-19 pandemic has officially been classified as an emergency scenario, which means that exceptions to the ADA apply. It is still a good idea to stay aware of your rights under the ADA, because an employer may try to overstep their bounds, even in the midst of this unusual situation.
Contact A South Carolina Employment Discrimination Attorney
Complying with the ADA during the COVID-19 pandemic doesn’t mean you have to give up your rights. If you suspect that yours have been infringed, calling a South Carolina employment discrimination attorney is a good idea. Attorney A. Christopher Potts has been handling these types of cases for years, and he and the firm of Hitchcock & Potts are happy to assist you. Call our offices today to speak to an attorney.