EEO’s Guidance for Federal Employee During COVID-19 Pandemic

Melville Johnson

April 2, 2020

The ADA is relevant to pandemic preparation in the following major ways: (1) the ADA regulates employers’ disability-related injuries and medical examinations for all applicants and employees, including those who do not have ADA disabilities; (2) the ADA 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 accommodation; (3)the ADA requires reasonable accommodation for individuals with disabilities (absent undue hardship) during a pandemic.

The ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees during employment, unless they are job-related and consistent with business necessity. Generally, an employer requiring a medical examination is based upon evidence that:

The employee’s ability to perform essential job functions will be impaired by a medical condition; or
An employee will pose a “direct threat” due to a medical condition.

A “direct threat” is a significant risk of substantial harm to the health or safety of the individual or others that can’t be eliminated or reduced by reasonable accommodation. The four factors that are considered when assessing whether an employee poses a“direct threat” includes:

The duration of the risk
The nature and severity of the potential harm
The likelihood that potential harm will occur; and
The imminence of the potential harm.

The“direct threat” rule is an important concept during a pandemic, as the issue of whether the pandemic illness rises to the level of a “direct threat” depends on the severity of the illness. If the CDC determines that the illness is significantly more severe than the 2009 spring/summer H1N1 influenza, it could pose a “direct threat.” Therefore, during this time, it is important that you stay updated on the latest CDC and state or local public health assessments.

The federal employee attorneys at Melville Johnson, P.C. are highly experienced in matters such as these, and are willing and able to assist you in your federal employment legal matters. Call or message us today to discuss your situation and learn how we can assist you.

This blog and web site published by Melville Johnson, P.C. should not be used as a substitute for seeking competent legal advice from a licensed professional attorney. Readers of this information should not act upon any information contained on this blog or website without seeking professional counsel.

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