Can employers force employees with disabilities to return to in-person work? Are schools required to provide students with virtual learning options? Can people with disabilities get accommodations under vaccine mandates? In this edition of Ask About the ADA, we turn to the Northeast ADA Center's Technical Assistance staff with tough questions about Americans with Disabilities Act rules in the midst of COVID-19. The pandemic has put our world through constant change, but the ADA's requirements for equal access and reasonable accommodations stay the same.
Visit the Northeast ADA's page with additional COVID-19 resources.
NortheastADA.org
Can employers force employees with disabilities to return to in-person work? Are schools required to provide students with virtual learning options? Can people with disabilities get accommodations under vaccine mandates? In this edition of Ask About the ADA, we turn to the Northeast ADA Center's Technical Assistance staff with tough questions about Americans with Disabilities Act rules in the midst of COVID-19. The pandemic has put our world through constant change, but the ADA's requirements for equal access and reasonable accommodations stay the same.
Visit the Northeast ADA's page with additional COVID-19 resources.
NortheastADA.org
JOE ZESSKI: Hello. Welcome to Ask About the ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it applies to your everyday life. I'm Joe Zesski, the program manager here at the Northeast ADA Center. On today's episode, we're going to have an interview conversation with myself, Jennifer Perry, our access specialist here at the Northeast ADA Center, and Christopher Sweet, our technical assistance specialist.
Those of you who have listened to the podcast for a while may remember they joined us back earlier in the year. We've asked them back to have another conversation around COVID and how things have developed regarding the ADA and understanding COVID in light of the law. Also joining us again is Grace Fairchild, our producer, who will lead our conversation and be asking the questions. Thanks, everybody, for joining us and coming back.
CHRISTOPHER SWEET: Yeah. Thank you, Joe.
JENNIFER PERRY: Thanks for having us.
JOE ZESSKI: And Grace, I'll hand the proverbial mic off to you to begin asking the questions.
GRACE FAIRCHILD: Sounds good. So we're going to talk today a lot about COVID, and the Delta variant, and returning to work, and how all of these topics impact the ADA. So first we'll start with concerns about returning to work. So although there are still pandemic concerns with the Delta variant, many employers are ready to bring their workers back from the virtual world to in-person work.
So first let's talk about requiring employees to return to in-person work. Some people with disabilities who might be immunocompromised have increased risks in returning to the office. And they might want to continue working remotely. Can employers require their employees to work in person or do they have to make reasonable accommodations?
JOE ZESSKI: I think the answer is that you have to look at each case separately on an individual basis because, in some ways, yes, an employer can require that. But there are times where you have to look at the reasonable accommodation process and is there a disability related need while a person can't work.
For example, I know earlier in September, the Equal Employment Opportunity Commission filed a case against I believe it was ISS Facility Services, which is a company that did facility management because someone who was working remotely-- in fact, the entire staff was I believe for a number of months. They came back to the office. The person requested to remain working remotely for two days a week, was denied, and then was fired for making the request. However other workers were allowed to work remotely. So you have a couple of things going on there. You have to look at the specific situation.
You have to look at consistency in policies. You have to look at how an individual's specific disability-- in that case, I believe the person had a pulmonary condition-- impacts the work environment or the way that they do their work. You have to look at each case separately on an individual basis.
CHRISTOPHER SWEET: I think just one thing that I would point out too is-- and this is relative to telework-- where an employer in addressing COVID-19 and allowing employees to do telework, there may have been some essential job functions that were basically suspended during that time. But the ADA never requires an employer to eliminate an essential job function as an accommodation for an individual with a disability.
And so when they go to restore work to pre-COVID conditions, you have to take into account that those essential job functions that were temporarily suspended may be back on the table and may be required of that individual. And if telework at that point does not allow for those essential job functions to resume, then that telework accommodation may not be what's going to work for the employer.
GRACE FAIRCHILD: That makes a lot of sense. And I think this same question can apply to a similar situation with the educational perspective. Can schools require students to return to in-person classrooms or do they need to offer virtual alternatives?
JOE ZESSKI: It's along the same lines where they can require everyone to be back in school but they have to look at does the student have a disability related need why they couldn't or does the student have a disability where returning to the in-person environment would pose a challenge related to their disability. Are they immunocompromised? Are there issues or concerns around that specifically? And in that case, the school does need to look at do we modify our policy, our general policy, in order to accommodate this individual? How could we do that?
Could it be done reasonably to ensure that same level of education and educational experience, because that's also part of what people need to look at and consider is the ADA and, beyond that, Section 504. It's intended to ensure students have an equal opportunity to get the same level of education, the same experience, the same benefits that a student without a disability would from the education process. So the school would have to look at can we reasonably do that virtually in light of what the student's needs
Are. And it's not an easy question. But there is guidance out there, fortunately, from the Department of Education. If you go to their website, the Department of Education's Office for Civil Rights, you can find a whole lot of information about accommodations, returning to school, and the in-person environment, dealing with COVID and other related issues.
GRACE FAIRCHILD: That's a good reference to have. So let's talk about the offices that people might be returning to. Are there any physical access considerations that employers should really be thinking about before they bring workers back to the offices, some of which have been empty since March of 2020?
JENNIFER PERRY: There are some things, Grace, that employers should consider. And you just raised a good point. A lot of these offices have been empty for quite some time. And one of the challenges with physical accessibility features is that they often have to be maintained to be accessible. So features that many people with disabilities rely on like elevators, you'd want to make sure that they have been inspected, that before you invite all of your employees back, that things like that are working that, they're operational, especially if they're necessary for somebody with a disability to access their workspace.
So I would start with ensuring that your accessible features have been maintained. If there have been any types of changes to the physical layout of the work environment in order to better support maybe physical separation of employees, you'd want to make sure that those efforts to provide separation to prevent the spread of COVID don't somehow then impact accessibility for people with disabilities. So that involves a simple check to make sure that you're not limiting things like accessible routes, making sure that you're providing equal access to those accessible features. So for instance, you might not have every toilet room in your office is fully accessible but you want to make sure that those that are accessible certainly are available and to be used by people with disabilities.
The same logic would apply with your entrances, making sure that those are fully accessible, are open and available for employees to use. And of course, you always have to consider the reasonable accommodation requests that employees may submit based on a particular disability. We often hear of reasonable accommodation requests for things like having a reserved parking space that's perhaps closer to the accessible entrance of the office. And now that we're dealing more and more with long COVID, there may be people with that type of accommodation request. So those are things employers want to be aware of.
We saw an uptick in calls here at the Northeast ADA Center about features that are not required under the ADA standards for design, things such as touchless faucets and bathrooms, automatic doors, automatic operators, anything that can be used without having to physically touch that. Certainly, we wouldn't want to discourage that kind of design and those methodologies. They're great. They're not required by the ADA. But certainly we do know that's something that a lot of employers, as well as businesses are considering moving forward having gone through this pandemic.
Other environmental factors that we know everyone is thinking about include perhaps providing additional air purifiers. And that could be another example of something that could come up perhaps as a reasonable accommodation request from an employee, particularly somebody who may have breathing difficulty or other types of disability related issues. So air purifiers, ensuring that you are changing out your HVAC filters.
And then finally, we've seen a big shift in trying to move operations, whether it's lunch or office meetings, to outdoors. So I would just remind everyone that things that are set up outdoors, even though they may be temporary in nature, must be equally accessible to employees with disabilities. So if you have patio seating or picnic tables, or if you're setting up a tent to hold meetings, you want to make sure that those areas are just as accessible for employees with disabilities as they are for those without.
GRACE FAIRCHILD: Those are some excellent reminders. So another really hot topic right now is vaccine mandates. So this could become another really hotly contested area under the ADA. Do you think there is room for reasonable accommodations for people with disabilities under vaccine mandates? How should employers work with employees with disabilities who maybe can't be vaccinated? Does this apply to the educational setting?
JOE ZESSKI: I think right now a lot of the mandates that are out there still have some provision for people who may have a disability related need as to why they can't receive a vaccine and I believe religious exemptions as well though I'm less familiar with that area. With vaccines, I think the ADA still applies. And this is one of those cases where you have to realize that things are ever-evolving and the situation is changing. So from the time that we're recording this, this happens to be September, things may change by the time you hear our podcast because events happen frequently. There are court decisions. There are changes that happen.
But in general, I believe there's still room. And it's still clear that if someone has a disability related need why they can't take a vaccine, perhaps a severe allergy to vaccine ingredients or perhaps they have an immunocompromised system where their doctor tells them that it's not safe for you to get the vaccine itself, the employer still probably does need to look at that in terms of a reasonable accommodation. But it's very complicated and sort of a bit of a moving target at the same time, which makes it a little hard to navigate. And there's not always a 100% clear answer. I don't know, Chris or Jen, if either you wanted to add to that.
CHRISTOPHER SWEET: Just taking it from an employer perspective that the employer still can gather information about the employee's medical condition to determine if the employee actually has a disability and whether there's a reasonable accommodation that can eliminate or reduce any risk associated with working unvaccinated that won't pose an undue hardship to the employer. And so we still got to remember that I mean we're throwing new language in such as vaccines, or vaccine mandates, or other things like that. But it still comes down to still being part of that interactive dialogue process with somebody who's seeking an accommodation.
GRACE FAIRCHILD: Yeah. I think that's a really important theme to keep coming back to and to keep reminding people about. So another million dollar question that people have been talking about since the beginning of the pandemic is whether COVID can be considered a disability under the ADA. So where are we on this question now 18 months into the pandemic? Is COVID a disability? Is long COVID a disability?
CHRISTOPHER SWEET: I can answer that. So when you're looking at disability under the ADA or section 504, if you will, if it substantially limits one or more major life activities, then these laws and their related rules will define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of the individual, then yes, COVID or long term COVID could be considered a disability.
And you want to think in the context of some of the things you hear on the news of people with long COVID or even in the short term with difficulty breathing, and so breathing being a major life function, or if an individual is suffering from joint or muscle pain and has trouble walking, that is another major life function. And so it really falls down to how the ADA in Section 504 defines that person. So yes is the short answer, I suppose.
JOE ZESSKI: And just to build on what you're saying, Chris, there's also some guidance out there now, which there wasn't before, specifically about long COVID. And a number of federal agencies have come out-- regulatory agencies have come out to say that long COVID could be, if it meets the conditions that Chris was talking about, could be a form of disability. And they've specifically published materials about that. There was one joint statement by the Department of Justice and the Department of Health and Human Services.
The Department of Education's Office for Civil Rights also had a statement on that. I believe the EEOC has also said that long COVID specifically could be a form of a disability. So there is now more federal guidance than there was in this area. And so, again, it depends on how the conditions affect the person. And do they result in physical or mental impairment in major life activity, like Chris was saying just a moment ago?
GRACE FAIRCHILD: Definitely. So you know, and then the ADA among several other laws require that employers keep all medical information about their employees confidential. So this might come into play under the ADA because of reasonable accommodation processes and not being able to disclose that your employee has long COVID. So with contact tracing, antibody testing, and vaccine mandates, sometimes these kind of details become common knowledge in an office setting. So what should employers do to make sure that they maintain confidentiality of employees' medical information related to COVID?
CHRISTOPHER SWEET: I mean one of the things to sort of parse out from that is taking a look at what would constitute say a medical examination. And so what, first of all, what needs to be protected as far as confidential information? So the CDC on antibody testing basically came out and said that it should not be used to make decisions about returning to work, that the antibody test doesn't meet the ADA's job related and consistent with business necessity.
So things like that may not even fall into play. But other things such as routine testing in the office, testing for COVID has been looked at by the EEOC as not being considered a medical examination. So then an employer really needs to take a look at what's being requested and why it's being requested. And so in the context of an individual coming in and saying I need reasonable accommodation, and the employer then says, well, I need to verify by obtaining medical documentation from your treating physician, that information then is going to be considered confidential, which at that point the ADA is very clear that it's to be stored separately from the employees personnel file so that there's limited access to that confidential information. Joe.
JOE ZESSKI: I think you're exactly right, Chris. And it's a good thing to highlight because it gets back to the basic idea. And I believe we actually may even talked about this in our first conversation that we had together a few months ago, that even though it's a pandemic, the law, the ADA and its regulations apply whether it is a pandemic, if it's not a pandemic.
And the basic ideas of the law of making reasonable accommodations in employment, or reasonable modifications in education, or protecting the confidential medical information of an employee, those concepts are still there. It's just a matter of thinking about how to apply them in an evolving circumstance, remembering that you have to look at both the general and the very case-specific details to try to determine how the ADA should best apply. And that's part of the conversation of the ADA, the part that makes it both a challenge but also makes it interesting and a flexible law that addresses a lot of different needs.
GRACE FAIRCHILD: So yes. I would say that the circumstances are evolving quite quickly. So why don't we think about these evolving circumstances in relation to the hiring process? So right now the US economy is experiencing quite a labor shortage. So many companies and businesses all over the country are trying to hire more workers. So what should HR departments keep in mind about the ADA and accessibility as they hire during the pandemic?
JOE ZESSKI: I think along the lines of what we were just saying, employers should be mindful of the things that they needed to do before the pandemic started. If someone needs a reasonable accommodation for the application process, they need to consider it and based on the individual having a disability related need for the accommodation.
So if you have an accessible application online, that's great. But if you're an employer who has one but you come to find out, well, it's not actually accessible, then you need to try to accommodate a person who might need one for that application if they use assistive technology and they need an accommodation to do it. So maybe it has to be done maybe by mail or some other alternative if the application can't be made accessible.
If someone has a condition where they might need a change in the venue for the interview because of their disability, perhaps to either an accessible location or perhaps to a location where they may be less compromised if it's in terms of an immuno-related disability, that's something that you need to consider. But these aren't necessarily new things, as we were just saying. It's just understanding how the ADA applies in the given circumstance and trying to be flexible and adapt to each situation.
CHRISTOPHER SWEET: And I would add that people with disabilities are very underrepresented in the United States workforce. And this is a time to look at your recruitment process and realizing there's a very untapped, huge workforce out there that recruiters should be looking at to fill those vacancies.
JENNIFER PERRY: And this is Jennifer. I can add that we're coming up leading up to October, which is traditionally National Disability Employment Awareness Month. And this year's theme is America's recovery powered by inclusion. So the Department of Labor really selected this theme to highlight that, as our nation recovers from the pandemic, the inclusion of people with disabilities really is central to that recovery effort. Of course, it's going to require all Americans but the Department of Labor is really asking employers to recognize the contributions of people with disabilities to our nation's success.
And the Department of Labor has a wealth of information and resources on their website to celebrate National Disability Employment Awareness Month. I would recommend if you're looking to publicize this event, you visit the Department of Labor's website.
GRACE FAIRCHILD: Another really good resource to mention. So I think that would wrap up the questions that I have for you all today. Do you have any other notes that you would want to let people know about the ADA in relation to COVID right now?
JOE ZESSKI: I think just try to stay informed. Reach out two places to find out more information. Reach out to us here at the Northeast ADA Center or, if you're in a different part of the country or if you're outside of the country-- I know we have some listeners who are overseas, reach out to an ADA center to find out more and check places like ADA.gov to see if there's any new or updated information.
GRACE FAIRCHILD: That sounds good. Thank you, Chris, Jen, and Joe for joining us today. I really appreciate it.
CHRISTOPHER SWEET: Thank you.
JENNIFER PERRY: Thank you.
JOE ZESSKI: And thank you for listening to today's podcast. If you have any questions, as I said, feel free to contact us here at the Northeast ADA Center. You can visit our website www.northeastADA.org. You can find us on social media, on Facebook, on Twitter, LinkedIn, Instagram. You can email us at NortheastADA@cornell.edu. Again, as always, thank you for joining the conversation.