COVID-19 AND THE AMERICANS WITH DISABILITIES ACT

The ADA prohibits employers with 15 or more employees from discriminating against employees because they are disabled.

The ADA prohibits employers with 15 or more employees from discriminating against employees because of their association with a person with disabilities, for example, because an employee has a disabled family member.

The ADA also requires employers with 15 or more employees to provide “reasonable accommodations” for employees with disabilities.

A disability is a “physical or mental impairment that substantially limits one or more major life activities”.

Can COVID-19 be a disability under the ADA?  It depends upon the length, severity, and physical effects of a COVID-19 infection.

Can my employer ask me if I have COVID-19 or require me to get tested? It depends on your job status, your job, and what your employer does.

  • If you are a job applicant, an employer may not ask or require you to take a medical examination before making a job offer. But, once an offer is made, an employer may require a post-offer medical examination or medical inquiry if such an examination is required of all new employees in the same job category.
  • If you are a current employee, your employer may require a medical examination or inquiry that is job-related and consistent with business necessity. For example, if your employer is a Hospital or other medical care provider and you have a job that requires patient contact, your employer may argue that it requires COVID-19 testing as a business necessity. Hustvet v. Allina Health Sys., 910 F.3d 399, 408 (8th Cir. 2018) (“Allina’s decision to force a class of employees (those employees with client contact who merged into the company) to undergo a health screen was job-related and consistent with a business necessity. The information requested and the medical exam, which tested for immunity to infectious diseases, were related to essential, job-related abilities.”).

If I take time off because I am diagnosed with COVID-19 is my job protected? Time off may be a reasonable accommodation under the ADA. However, since a COVID-19 infection may not qualify as a disability, an employee should first make use of any available leave under the Family Medical Leave Act or, for Federal contractors, Federal Paid Sick Leave.

If I take time off to care for a family member diagnosed with COVID-19 is my job protected? The ADA does not grant time off to care for a family member. If you are in this situation, you should make use of any available leave under the Family Medical Leave Act.

If I get fired because I test positive for COVID-19, can I sue under the ADA? It depends on whether your COVID-19 infection qualifies as a “disability” under the ADA and other specific facts about your situation.

Click here to review Governor Gretchen Wihitmer’s Executive Order 2020-10 (COVID-19)

Click here for information on Claiming Unemployment Benefits in Michigan COVID-19 Guide

For more information or questions contact the author Charlotte Croson.