How to avoid discrimination claims while protecting employees from COVID-19

It’s unclear when various states and localities will lift their stay-at-home orders. Whether it happens in the next few weeks or sometime thereafter, employees will be returning to their physical workplaces, and employers must be cautious not to inadvertently run afoul of the Americans with Disabilities Act (ADA) and any parallel state discrimination law when they take steps to reduce the risk of anyone becoming infected with COVID-19. Fortunately, the Equal Employment Opportunity Commission (EEOC) has provided employers with some guidance that tips the scales in favor of protecting employees’ health.

Interplay between ADA and COVID-19

The ADA protects applicants and employees from disability discrimination. It limits employers’ abilities to make disability-related inquiries and conduct medical examinations for applicants and employees, including those who don’t have disabilities.

The Act also prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk of substantial harm even with reasonable accommodations). Because COVID-19 poses a direct threat to employees, employers may take protective steps that likely wouldn’t be permissible under normal circumstances.

Calling out sick and sending employees home