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Legal Updates

COVID-19 And Reasonable Accommodations Under The ADA

With American workers returning to their jobs in ever-increasing numbers, safety is front of mind for both employers and employees. As employers navigate state and local regulations mandating COVID-19-related safety precautions, they should be careful not to forget about an old friend – the Americans With Disabilities Act – which may provide additional protections for employees and entail additional duties for employers.


The Americans With Disabilities Act (“ADA”) prohibits discrimination on the basis of disability in a wide range of venues, including employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications.

The ADA defines a person with a disability as an individual who (i) has a physical or mental impairment that substantially limits one or more major life activities, (ii) has a history or record of such an impairment, or (iii) is perceived by others as having such an impairment. Title I of the ADA prohibits most U.S. employers from discriminating against otherwise qualified individuals with disabilities in recruitment, hiring, promotion, training, pay, social activities, and other terms, conditions, and privileges of employment.

A key employer obligation under the ADA – and one that frequently demands flexibility and creativity – is the requirement to provide reasonable accommodations for known physical or mental limitations of otherwise qualified individuals with disabilities.

In general, an accommodation is an individually-tailored change in the work environment or workplace policies or procedures, such as special equipment, schedule adjustments, or modifications to job duties. These types of accommodations allow an employee with a disability to perform the essential functions of the job or enjoy the same benefits and privileges of employment as employees without disabilities.

The ADA directs employers and employees to engage in an “interactive process” of discussion, aimed at reaching agreement on a reasonable accommodation for a disability. As part of the interactive process, the employer may solicit relevant input from the employee’s health care provider.

An employer is not required to provide a requested accommodation that would create an “undue burden” for the employer or pose a “direct threat” to the safety of the employee, co-workers, or others.

An employee who believes that he or she has been denied a reasonable accommodation or otherwise has experienced disability discrimination may file a charge against his or her employer with the U.S. Equal Employment Opportunity Commission (the “EEOC”) or the equivalent state agency. Employees may also pursue such claims in state or federal court.

ADA Principles In The COVID-19 Context

During an event such as the current COVID-19 pandemic, employers are likely to see an uptick in requests for accommodations under the ADA. This means more frequent obligations to engage in the interactive process and – potentially – a greater risk of legal exposure for employers that do not get it right.

With the caveat that each employee’s situation is different and must be analyzed individually, below are some general guidelines for employers facing ADA accommodation issues as employees return to work.

Does An Employee’s Fear Of Returning To Work Trigger A Duty To Accommodate Under The ADA?

To varying degrees, employees may experience stress upon returning to work from the COVID-19 shutdown. Many fear infection, out of concern for their own health or that of family members.

Generally speaking, such concerns do not qualify as “disabilities” under the ADA, and employers are thus not required to make accommodations for workers simply because they are uneasy or fearful about returning to work.

However, employees with more serious mental health conditions – such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder – may experience more difficulty coping with stresses related to COVID-19, including those associated with returning to the workplace. Such employees may be entitled to reasonable accommodations under the ADA, potentially including measures such as additional unpaid leave, permission to work from home, or schedule adjustments that enable an employee to meet with a mental health counselor.

What Are An Employer’s Obligations Toward Employees With Medical Conditions That Put Them In A Higher-Risk Category For COVID-19?

Some employees have medical conditions that would put them at greater risk of experiencing severe health problems if they were to contract the COVID-19 virus. Employers are rightly concerned for such employees’ health and safety.

That said, being in a higher-risk category for a severe case of COVID-19 does not, by itself, entitle an employee to the protections of the ADA. On this topic, the Centers For Disease Control and Prevention (the “CDC) has stated:

Individuals over the age of 65 are at higher risk, but because age is not considered a disability under the ADA (and because age discrimination laws do not require employers to make reasonable accommodations), absent a disability, employers are not required to provide reasonable accommodations to older workers.

However, in some cases, the medical condition giving rise to the employee’s concern COVID-19 may constitute a covered disability. In that case, the employer would be required to explore potential reasonable accommodations with the employee.

Similarly, while pregnancy normally does not qualify as a disability under the ADA, a pregnant employee may be entitled to a reasonable accommodation under either the ADA, the federal Pregnancy Discrimination Act, or applicable state law, particularly if the employee is experiencing a debilitating pregnancy-related condition (such as preeclampsia).

Is An Employee Entitled To A Reasonable Accommodation Based On Sharing A Home With A Person Whose Disability Puts Him Or Her In A Higher-Risk Category For COVID-19?

Some employees live with family members with disabilities that put them in a higher-risk category in the event of COVID-19 infection. In such a case, while the employee may be legitimately concerned about his or her family members’ contracting the virus, the employee is not entitled to accommodation under the ADA. The ADA prohibits disparate treatment or harassment based on an employee’s association with a person with a disability, but it does not require an employer to provide accommodations based on the disability of a family member.

May An Employee Refuse To Wear A Mask Due To A Medical Condition?

If an employee has a disability that would prevent him or her from performing the essential functions of the position while complying with the employer’s mask requirement, the employer must engage in the ADA interactive process to determine whether a reasonable accommodation is available.

This does not mean that the employer necessarily must grant the employee an exemption from its mask-wearing policy. Depending on the nature of the job and the facility, and whether applicable laws mandate or merely encourage masks in the workplace, such an exemption may not be feasible. Instead, a reasonable accommodation might entail granting temporary permission to telecommute, or providing a different type of barrier, such as a face shield or a Plexiglas divider.

What Types Of Accommodations Are Potentially Reasonable/Unreasonable?

For an employee with a disability entitling him or her to an ADA accommodation, what types of COVID-19-related accommodations may be reasonable will vary, based on the nature of the workplace, the job, and the employee’s disability.

The EEOC has suggested that employers may be able to effectively accommodate a disabled employee who requests reduced contact with others by designating one-way aisles and using barriers such as tables to ensure that the employee is able to remain a safe distance away from customers and coworkers.

More generally, the EEOC encourages employers to be flexible in considering what accommodations are possible under the circumstances. Other potential accommodations include temporary reassignment of marginal job duties, a temporary transfer to a different position, a modified work schedule or shift assignment, or extended paid or unpaid leave (though, generally speaking, the ADA does not obligate an employer to provide leave for an open-ended period of time).

As noted above, the ADA does not compel an employer to provide an accommodation that would pose an “undue hardship” – i.e., a measure that would involve “significant difficulty or expense.” On this topic, the EEOC has stated, as part of a series of questions and answers related to COVID-19 and equal employment opportunity laws, that “an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.”

For example, while the COVID-19 pandemic continues, it may be more difficult for employers to acquire certain protective materials, to provide flexible scheduling, or to hire temporary workers for specialized positions. Similarly, employers that were shut down until recently due to the pandemic may have limited financial resources, which may change the calculus as to what counts as “significant expense.”

The EEOC cautions, however, that employers should consider whether there may be low-cost or no-cost accommodations available during the pandemic.


These are only a sampling of the range of disability-related legal issues triggered by the COVID-19 pandemic. Many employers are also considering, for example, whether to take employees’ temperatures when they report to work; how to handle the transition back to work for employees who have tested positive for the virus; and what accommodations should be made for customers, clients and other visitors.

It is important for employers to work closely with legal counsel to manage these issues and minimize legal risks, while at the same time keeping employees safe and productive. Our experienced employment attorneys would be happy to assist your organization with these types of issues.