Management Update

Accommodate Before You Terminate: COVID May Be a Disability Under the ADA

By: Eve B Masinter and Kayla M. Jacob

It’s easy to conceptualize COVID-19 by the symptoms it is known to cause, which range from loss of smell/taste to difficulty breathing to common-cold-like symptoms to no symptoms at all. These symptoms not only indicate that an employee is infected with the virus causing COVID-19 but, according to new guidance released by the EEOC, these symptoms may also indicate that an employee with COVID-19 has an actual disability that requires a reasonable accommodation. (The EEOC guidance applies to applicants and employees).

Is It Just COVID Or Is It Also a Disability?

COVID-19 is not always considered a disability under the Americans with Disabilities Act (ADA). For example, the EEOC does not consider an asymptomatic employee or an employee with mild symptoms, such as those experienced with the common cold or flu, as an employee has an actual disability under the ADA. Whether COVID-19 triggers ADA protection depends on each employee’s particular medical condition.

Importantly, the ADA has not been expanded to include COVID-19 as a disability. Rather, the same ADA inquiry applies that otherwise would apply to any other disability. Employers should therefore perform an individualized assessment to determine whether the employee infected with the virus causing COVID-19 has a physical or mental impairment that substantially limits one or more major life activities or major bodily functions. Because COVID-19 is a physiological condition affecting one or more body systems, it meets the definition of a physical or mental impairment under the ADA. As symptoms have indicated, COVID-19 can affect major life activities, such as breathing or thinking, and major bodily functions, including lung and heart functions. For some, these symptoms are constant and persist for five or more days. For others, symptoms are episodic and tend to come and go. Regardless of how symptoms are experienced, when these effects are substantially limiting to one or more major life activities or major bodily functions, that employee may be protected under the ADA.

When is COVID-19 Substantially Limiting?

Employers should not feel the need to become an expert on the physical or mental limitations of COVID-19 to determine whether an infected employee has a covered disability. The EEOC does not require an extensive analysis of the “substantially limiting” inquiry.

Just like any other disability, whether COVID-19 is substantially limiting is construed broadly. In fact, it is so broadly construed that COVID-19 need not prevent, or significantly or severely restrict a person from performing major life activities to be considered substantially limiting under the ADA. Additionally, no time limitations are imposed for COVID-19 to be considered substantially limiting. Even impairments lasting only a short period of time, which are generally not covered, could be covered if sufficiently severe.

Employers are also prohibited from considering any mitigating measures when inquiring as to whether COVID-19 substantially limits a major life activity. Mitigating measures include medication, antiviral drugs, and respiratory therapy, to name a few. Employers should however consider any negative side effects of mitigating measures as those could be a disability under the ADA.

COVID-19 As A Disability for The Non-Infected

COVID-19 may also trigger ADA protections when an employee has a “record of” a disability. This typically occurs when an employee either has a history of having COVID-19 or has been misclassified as having COVID-19.

An employee who is “regarded as” having COVID-19 may also be protected under the ADA. An employee can be regarded as having a COVID-19 disability if the person is subject to an adverse employment action because they are infected with COVID-19 or because the employer mistakenly believes the person has COVID-19.

Post-Infection Disabilities

Even if an employee’s COVID-19 infection is not considered as a disability while infected, that employee may later qualify for protections under the ADA if they develop impairments that are themselves considered disabilities. For example, an asymptomatic employee’s COVID-19 infection may not initially constitute an actual disability. However, if that employee later develops heart inflammation due to their previous COVID-19 infection, the heart condition could constitute a disability and trigger ADA protections. Similarly, while an employee with mild symptoms may not trigger ADA protections, should that employee develop more severe symptoms, such as suffering an acute ischemic stroke, then ADA protections could be triggered at that time.

Also, as we have previously written, “Long COVID” – a range of symptoms lasting weeks or months after first being infected with the virus causing COVID-19 – may also constitute a disability under the ADA.

Bottom line: For employers, COVID now has additional considerations outside of vaccine mandates and stays and general policy considerations, such as quarantine times. Now, employers must also consider whether applicants and employees infected with the virus causing COVID-19 or those who develop disabling conditions as a result of COVID-19 should be accommodated in accordance with the ADA.

Congress Passes Ban on Arbitration Clauses for Sex Harassment and Sex Assault Claims – Bill Goes to Biden for Signature

By: Jerry L. "Jay" Stovall, Jr.

The U.S. Senate joined the House of Representatives and passed H.R. 4445. This Act will give the claimant the ability to void any agreement requiring the arbitration of sexual harassment and sexual assault claims. The Act also voids any agreement containing a class action waiver of these types of claims.

The Act does not prevent the parties from entering into an agreement to submit sexual harassment and sexual assault claims to arbitration as long as the agreement is entered into after the claims arise. However, as a practical matter, very few claimants are going to agree to arbitration at that point.

The Act applies to claims arising under state, federal, and tribal law after the date of enactment of the Act. Read the text of the Act here: https://www.congress.gov/bill/117th-congress/house-bill/4445/text

If you have an arbitration provision in your Handbook or a stand-alone arbitration agreements with your employees that would cover these types of claims, you should think about revising the language once the Act becomes effective.

Recent Federal Court Ruling on ADA Claim Emphasizes Importance of Engaging In and Documenting the Interactive Process

By: Jerry L. "Jay" Stovall, Jr.

A federal court in Ohio recently denied summary judgment to an employer who refused to hire an applicant for a forklift driving position who used prescription opioid medication. The court determined that there were fact issues regarding whether the employer properly engaged in the interactive process and whether the applicant’s opioid use rendered him unsafe to perform the job.

The applicant disclosed his use of prescription opioid pain during his initial interview and provided a physician’s note that his medications would not create a safety concern. The applicant subsequently passed the pre-employment drug test, but the test result was marked “safety-sensitive.” In response, the employer requested another physician’s note, which the applicant provided. After some further conversations with the applicant the employer declined to hire him because his medications were a “safety hazard.”

The applicant asserted claims under the Americans with Disabilities Act claiming that he was “regarded as” disabled by the employer. The employer argued that it was unaware of the applicant’s disability; and that it was only aware of the medications he used but admitted that it did not hire the applicant because it believed that the side effects of his medications rendered him unsafe to operate a forklift.

The Court held that it was not clear that the employer conducted an “individualized inquiry” concerning the applicant’s ability to safely perform the duties of a forklift driver. The employer’s notes regarding the interactive process and its internal decision-making were vague at best. In addition, the employer and the applicant disagreed about whether the employer had requested additional, more specific, documentation from the applicant’s physician. As a result of the disputed issues of fact, the Court denied summary judgment.

Had the employer retained better documentation concerning the interactive process: what it requested from the applicant and when, and what if anything the applicant provided in response, it may have been able to have the case dismissed on summary judgment. As I have said many times before, in the HR arena, if you don’t document it, you didn’t do it.

The Department of Labor Is Coming After Us All

By: Jerry L. "Jay" Stovall, Jr.

The halcyon days of a pro-business Department of Labor are truly gone. In the past year, the DOL has withdrawn many Opinion Letters favorable to business; rescinded the Trump-Era joint employer rule and terminated a program that allowed employers to self-report FLSA violations in exchange for avoiding penalties. Now, the DOL has announced that it is hiring one hundred additional wage and hour investigators who will be specifically tasked to identify overtime and classification errors by employers.

There are several steps that employers can take now:

Re-analyze employee classification – Has that exempt employee’s duties or compensation structure changed such that they are no longer exempt. Did you properly classify workers as exempt when they were hired?
Confirm that exempt employees are paid a salary – With few exceptions, a worker cannot be exempt from overtime unless they are paid on a salary basis. When you consider how complicated some compensation programs are, the salary element can be lost without an employer even realizing it. Keep in mind that even very highly compensated employees must be paid a salary in order to qualify as exempt.
Check your pay practices – Do you use an automatic deduction for lunch or other breaks? While not specifically prohibited, these often lead to overtime violations. Do you pay an exempt employee bonus that amounts to more than her salary? If so, this could cause you to lose the salary component and the exemption.
Are you maintaining the required documents and information? The new investigators are going to initiate a wave of new desk audits seeking to determine if employers are maintaining the proper documentation. Make sure that yours are in order before you get a letter for Wage and Hour.

As we have been saying, the DOL has become much more aggressive and far less employer friendly. It is more important than ever that employers proactively ensure that they are compliant with the FLSA.

If the DOL Doesn’t Get You, the NLRB Will

By: Jerry L. "Jay" Stovall, Jr.

The U.S. Department of Labor Wage and Hour Division and the National Labor Relations Board recently entered into a Memorandum of Understanding that does not bode well for employers. Under this Memorandum, the DOL and NLRB will share with each other any information and data that they discover during an investigation that they believe may show a violation of a law enforced by the other entity. For example, if an employee tells a DOL investigator that the employer’s “publicity policy” forbids employees from speaking ill of the employer on social media, the DOL investigator will refer the information to the NLRB for investigation as potential a Section 7 violation.

The Memorandum goes even further: it also provides that when one agency “has reason to believe that there may be unlawful conduct that falls within the jurisdiction of the [other agency],” it will “advise the complainant/employee(s) that an opportunity may exist to file a charge with the [other agency].”

So, not only will one agency tell the other that it needs to investigate you, but it will also tell the complainant that he should file another charge against you.

To better enforce this commitment, the DOL recently announced that it is hiring over 100 new investigators.

This is all a part of President Biden’s stated pro-labor/pro-union mandate. If you are not sure if your policies and practices are in compliance with the NLRA and the FLSA, now is the time to make sure that they are and to implement any needed changes. Don’t wait until the DOL or NLRB are knocking on your door.