Disclaimer: We are not experts in health or policy and make no guarantees as to the accuracy or timeliness of the details on this page. This page is for informational purposes only. See our full COVID-19 disclaimer for more.

 

If your business has hit trouble because of the pandemic and you need guidance, the attorneys at G & G Law have assembled a toolkit of accessible, easy-to-digest information that answers many common questions we’ve received from our clients. You can read more about it and purchase it here.

 

What disabilities require accommodations under the ADA?

The American with Disabilities Act does not list specific disabilities that require accommodations. An individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment. An employer is required to make a reasonable accommodation to the known disability of an employee if it would not impose an undue hardship on the operation of the employer’s business. More details and exact definitions are included below.

  • Disability: a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such impairment; or being regarded as having such an impairment.
  • Physical or Mental Impairment:
    • Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine;
    • Any mental or psychological disorder such mental retardation, organic brain syndrome, emotion or mental illness, and specific learning disabilities.
    • The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.
  • Qualified Employee: An individual who, with or without reasonable accommodation, can perform the essential functions of the job in question.
  • Reasonable accommodations: Such measures may include, but are not limited to:
    • Making existing facilities used by employees readily accessible to and usable by persons with disabilities
    • Job restructuring, modifying work schedules, reassignment to a vacant position
    • Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

 

Do I need to provide special accommodations for employees with a higher risk of having serious complications if they contract COVID-19?

e.g. Business owners have asked about employees with diabetes or respiratory illnesses.

The simple answer is “it depends”. Under the Americans with Disabilities Act, employees who qualify under the ADA may be entitled to unscheduled leave, unpaid leave, or modifications to the employer sick leave policies as “reasonable accommodations”. These modifications to jobs, work environments, or workplace policies that enable qualified employees with disabilities to perform these essential functions of their jobs and have equal opportunities to receive the benefits available to employees without disabilities. Accommodations are reasonable if the accommodation seems reasonable on its face, meaning that the accommodation appears to be feasible or plausible. An accommodation is not reasonable if an employer has to eliminate an essential function (fundamental duty) of the position. This means that if the position requires that the employee work in person directly with others or customers, the employer most likely will not be required to make an accommodation for that employer.

 

Employers also do not have to provide a reasonable accommodation if it causes an undue hardship to the employer. The court will look at several factors in determining whether an accommodation is an undue hardship. These factors include:

  1. the nature and cost of the accommodation needed;
  2. the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
  3. the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
  4. the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
  5. the impact of the accommodation on the operation of the facility

 

To Stay Informed:

  • The Department of Labor has great resources regarding ADA requirements including these FAQs.
  • The EEOC has resources regarding ADA and acceptable accommodations, including this guidance.
  • The CDC posted guidance on how to make a business prepared for COVID-19, available here.
  • There will be more laws passed affecting employers and guidance posted in the coming weeks, so it is important to have up to date information.