During the COVID-19 pandemic, it’s important to remember your rights under the Americans with Disabilities Act (ADA) and Ohio law. Rest assured that you do still have protections. However, given the unusual situation, employers do have some leeway to make sure workplaces are safe for everyone.
Employment rights and remedies – where to go if an issue arises
The Equal Employment Opportunity Commission (EEOC) and Ohio Civil Rights Commission (OCRC) continue to enforce the ADA and Ohio laws against discrimination. Check with these agencies to get the most up-to-date information about how to file a charge. It is important to remember you have 180 days to file a charge of discrimination with the OCRC, or 300 days to file a charge of discrimination with the EEOC.
Hiring and medical inquiries
Many employers are currently screening job applicants for COVID-19 symptoms. This is permitted after a conditional job offer as long as the employer does the same for everyone they hire. Part of this screening may include temperature scans or other medical checks for symptoms of COVID-19.
Public health authorities have said that you cannot be in the workplace if you have COVID-19 or its symptoms. So, if you already have a job offer, but have COVID-19 or its symptoms, an employer might delay your start date or they might withdraw your job offer if they needed you to start right away. However, the employer cannot delay your start date or withdraw your job offer only because you may be at a higher risk for COVID-19, but they might choose to allow you to telework, or ask you if you would like to delay your start date.
Returning to work
The ADA and Ohio law still apply as employees return to workplaces. Many employers are currently conducting medical inquiries, exams and screenings as employees return. The law allows disability-related inquiries or medical exams if they are related to your job and the needs of the business. This includes the excluding employees with a medical condition that poses a direct threat to health or safety. Public health authorities have issued guidance showing this need exists, so employers can require those with COVID-19 or its symptoms to remain away from the workplace.
Public health guidance also allows employers to make medical inquiries such as asking you for a doctor’s note if you call out sick. Employers may conduct medical exams and screenings, following public health guidance. Examples include taking temperatures and asking questions about symptoms, or requiring self-reporting of symptoms, for everyone entering the workplace. Still, your employer should not screen you or exclude you only because of a disability. Your employer is permitted to track your temperature or symptoms, but they must keep your health information separate and private under the ADA. However, if you are found to have COVID-19, your employer can tell public health agencies.
Many employers currently require employees to wear protective gear, such as masks and gloves, and are implementing required practices like regular handwashing, physical distancing and sanitizing work areas. Though this is allowed under the law, you can ask for reasonable accommodations due to a disability.
Reasonable accommodations
The ADA permits you to request reasonable accommodations for modified protective gear or practices because of a disability. The specifics of your request would depend on your disability, your job and your employer’s requirements. Examples of reasonable accommodations for protective gear could include things like non-latex gloves, or modified face masks or shields. Examples of policies or practices that could be reasonably modified include permitting personal care assistants or finding alternatives to handwashing rules.
Your employer should talk through your requests for reasonable accommodation and they should provide those accommodations or offer an alternative if they are able. The Job Accommodation Network, which provides free, expert guidance on workplace accommodations and disability employment issues, can be a resource in this process.
You can request reasonable accommodations for many issues, particularly if your disability puts you at greater risk of complications from COVID-19, or if you need different accommodations because of telework or alterations in the workplace. Flexibility from everyone involved is important in determining if an accommodation is possible in these circumstances. Making changes to the work environment, temporarily restructuring high-risk job duties, temporarily transferring you to a different position or modifying a work schedule are some examples that may let you safely do your job but still reduce your exposure to others in the workplace.
Importantly, the normal ADA reasonable accommodation process is still in effect. Your employer is still permitted to request medical documentation to support your requests for reasonable accommodation and your employer still has to engage in the interactive process with you. Your employer might make a temporary decision or say that they want to discuss the accommodations again when things are more normal. Your employer is still permitted to ask you about how your disability limits you, how the accommodation you have asked for helps, whether another accommodation might help and how accommodations will let you keep doing your job.
How an attorney can help – An attorney can help you navigate working during the pandemic, from guiding you on what reasonable accommodations might be the right fit for you to what an employer can and cannot ask you to do under the ADA. They can also help you file a charge of discrimination with the EEOC or OCRC, if necessary.
About the author – William G. Puckett is an attorney with Disability Rights Ohio, the protection and advocacy agency for Ohioans with disabilities. He focuses his statewide practice on employment issues surrounding the ADA and Ohio laws against discrimination. Disability Rights Ohio is available to answer questions you may have in this area, as well as a variety of other disability-related topics. You can contact the Disability Rights Ohio intake line at 614-466-7264 or 1-800-282-9181, press option 2, and leave a voicemail.
Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.
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