Americans with Disabilities Act
Disability Definition Under the ADA, a disability is defined as having a physical or mental impairment that substantially limits one or more major life activities. It also provides protection should a person have a history of such an impairment or is perceived by others as having so, even if they do not. The Flu Generally Doesn’t Count Temporary, non-chronic conditions of short duration with little or no permanent impacts are generally not disabilities. As such, the flu is seldom considered a disability and thus would not create an entitlement to ADA accommodation. That said, if there are complications, if an individual is severely compromised by COVID-19, or if an individual with other health conditions that worsen COVID-19 may have disabilities that require accommodation. EEOC Guidance The EEOC has updated and re-released a technical assistance document that was originally issued in 2009 during the spread of the H1N1 virus. It identifies established ADA principles that are relevant to questions frequently asked about workplace pandemic planning, such as: • How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce when an influenza pandemic appears imminent? • When may an ADA-covered employer take the body temperature of employees during a pandemic? • Does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic influenza virus? • When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty? Direct Threat Protection A “direct threat" is defined as 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. If an individual with a disability poses a direct threat despite reasonable accommodation, he or she is not protected by the nondiscrimination provisions of the ADA. The concept of direct threat is important during an influenza pandemic. Importantly, the EEOC has determined that COVID-19 meets the direct threat standard. The ADA and COVID-19 In a pandemic, employers can follow guidelines issued by the Centers for Disease Control and Prevention (CDC). In the current COVID-19 circumstances, employers may do the following: • Send employees home if they display flu-like symptoms • Separate employees who display flu-like symptoms if it is necessary to keep said employees on site • Ask employees who report feeling ill at work or who calls in sick whether the employee is experiencing flu-like symptoms. For COVID-19, this would include questions relating to fever, chills, cough, shortness of breath, or sore throat.
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