Americans with Disabilities Act Amid COVID-19; New Issues to Consider for Wisconsin Employers

The COVID-19 pandemic has resulted in layoffs and furloughs of millions of employees, including record levels in Wisconsin alone.

As Safer at Home Orders become return-to-work efforts, employees may express concerns about their safety in the workplace. Some of those employees might have health conditions that put them at greater risk of becoming physically or mentally unwell.

Employer ADA responsibilities during COVID-19

Wisconsin employers need to consider the Americans with Disabilities Act (ADA) as it relates to COVID-19 issues and bringing employees back to work.

The ADA prohibits discrimination against individuals with disabilities in all areas of public life including jobs, schools, transportation, and all public and private places that are open to the public. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else.

Under the ADA, employers with 15 or more employees are required to provide “reasonable accommodations” for qualified employees with disabilities, unless doing so would pose an “undue hardship.”

A "reasonable accommodation" is a change in the work environment that allows an individual with a disability to have an equal opportunity to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment. An accommodation poses an "undue hardship" if it results in significant difficulty or expense for the employer while taking into account the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business.

In most cases, return-to-work will not trigger ADA issues. However, for employees with underlying physical health concerns that leave them vulnerable, or for those who have an anxiety or other mental health disorder, returning to work might present ADA considerations.

If employees request accommodations due to the COVID-19 pandemic, employers will need to engage in a dialogue with those employees. The employer should consider the ADA in determining if an accommodation is warranted and if one can be provided.

How can employers ease employee health concerns during return-to-work?

Employers may be able to avoid some employee safety concerns by clearly communicating the steps that have been taken to ensure their safety. Strategies to reduce the spread of illness such as bringing employees back in waves, requiring masks in common areas, dispersing hand sanitizers throughout the office, and spacing requirements in meetings and break rooms might be enough to ease employee concerns.

As always, care must be taken to avoid treating certain employees differently, other than ADA considerations. Make sure employees’ ages, race, gender, and leave status are not factors in your business decisions, including choosing essential positions and eliminating other positions.

A reminder about ADA for employers during COVID-19

The ADA requires that all medical information about an employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information.

An employer may store medical information related to COVID-19 concerns in existing employee medical files, as long as access is limited in accordance with the requirements of the ADA. Such medical information could include employees’ statement that they have or suspect they have COVID-19, as well as employer notes or other documentation from questioning an employee about symptoms.

As employees return to work, an employer may require employees to wear personal protective equipment such as masks, gowns, or disposable gloves during a pandemic. However, that requirement could trigger its own issues. For example, an employee with a disability may need an accommodation under the ADA if they have a latex allergy or require gowns designed for individuals who use wheelchairs. Absent an “undue hardship,” the employer should provide these accommodations.

Employment lawyers in Wisconsin to assist with COVID-19 legal matters

Murphy Desmond’s employment lawyers are available to assist you with ADA issues and back-to-work strategies for your business, organization or municipality. We have offices in Madison, Janesville, Appleton, and Dodgeville, Wisconsin. Call us at 608.257.7181 to set up an appointment to discuss your matters.

Published June 3, 2020