A few weeks ago, we released a blog titled “Proactive Steps for Avoiding COVID-19-Related Employment Termination.” Today, we wanted to touch on the Americans with Disabilities Act (ADA) and termination events that may be impacted or related to COVID-19 policies and restrictions.
ADA Protections
The Equal Employment Opportunity Commission (EEOC) enforces workplace discrimination laws including the ADA. Title 1 of the ADA, which applies to private employers with 15 or more employees, provides job protections to employees who have a disability or other ADA-covered situation.
Many employees have experienced COVID-19-related symptoms that caused them to be absent from work. It’s important that employers follow the ADA and other employment-related guidelines when granting leave and prior to disciplining an employee for absenteeism.
Although COVID-19 alone may not qualify an employee for protections under the ADA, an employee who has ADA protection may be disproportionally impacted by polices related to COVID-19 issues.
As an example, in September 2021 the EEOC filed a lawsuit against an employer who allegedly denied an accommodation for telework in violation of the ADA. The worker, who has chronic lung disease and hypertension, requested an accommodation to work remotely two days per week as well as frequent breaks, claiming her conditions put her at increased risk for contracting COVID-19. When the employer required all workers to return to the office full time, the organization denied her accommodation, even though they purportedly allowed other employees in her position to work from home. Her employment was then terminated two months later.
Resources to Help Employers
As an employer that is governed by the ADA, there are resources to help you, consistent with our Understanding ART approach to risk management:
Avoid Making Errors by Knowing the Laws
The EEOC has created a comprehensive website related to COVID-19, the ADA, and other pandemic-related issues. The EEOC guidance covers topics including reasonable accommodations, caregivers, pregnancy, and more. Being aware of these laws and how they impact your organization is the first step to ensuring you stay on the safe side of the situation.
Reduce Your Risk
Reduce your risk when an adverse employment action is imminent. Consult with qualified counsel prior to implementing policies or terminating an employee. Also, remember that guidance from public health authorities is likely to change as the pandemic and its response evolve.
Keeping apprised of changes — and ensuring your legal counsel does as well — is critical to ensuring you remain compliant. For example: Courts may become more agreeable to requiring remote work as a reasonable accommodation due to many workers demonstrating success in doing so during the pandemic.
Transfer the Impact
Transfer the financial impact of employment litigation to an Employment Practices Liability (EPL) policy. EPL can provide a financial safety net for defense expenses and even settlement and indemnity costs when your best efforts to avoid and reduce your risk still result in litigation. Put a high quality EPL policy in place today and protect your tomorrow.
Talk with the Experts
You can also talk with us! We have experts on hand to discuss any questions you may have regarding employment-related issues. We’re just an email away.
