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COVID-19 (Coronavirus) - Americans with Disabilities Act ("ADA")

The information provided within this FAQ does not constitute legal advice. Appropriate legal assessment and advice can only be given based on knowledge of your specific facts applied to the rapidly evolving legal landscape of employment law. We strongly recommend you consult with an employment attorney before acting on the below.

Last updated: May 13, 2021

What rights do I have if I am suspected of having or have tested positive for COVID-19?

NEW YORK

Your employer cannot fire you, send you home, or tell you not to come to work because they think you may have been exposed to the coronavirus based solely on your race, national origin, or disability. Harassment and discrimination on the basis of race, national origin, age, and disability (including having COVID-19 or another serious illness) is illegal under the New York City Human Rights Law.

The CDC has declared that the COVID-19 (coronavirus) pandemic meets the “direct threat” standard under the ADA. As a result, individuals are not protected by the standard nondiscrimination provisions of the ADA if they have COVID-19 (coronavirus).  However, if the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19 (coronavirus), this could affect whether COVID-19 (coronavirus) is still considered a “direct threat,” therefore reestablishing ADA protections.

 

Can my employer take my temperature?

Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 (coronavirus) do not have a fever.

 

When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus and/or has completed the required quarantine period.

 

Can an employer ask an employee or an applicant if they have received the COVID-19 vaccine or require employees to be vaccinated?

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  29 C.F.R. 1630.2(r). Individuals who cannot be vaccinated because of a medical condition, should seek a reasonable accommodation from the employer.

 

Can an employee object to a vaccination requirement based on religious belief?

Yes.  Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.  In times of a pandemic, whether accommodating a religious belief against vaccination would pose an undue hardship would be determined on a case-by-case basis.  Ordinarily, an employer cannot question the sincerity of an employee’s religious belief.  However, if an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

 

What happens if an employer cannot accommodate an employee who cannot get vaccinated because of a disability or a sincerely held religious belief or practice?

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.

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Charlotte: 704.626.6648

New York: 212.662.6500

Triangle: 919.251.6008