Tips for Addressing ADA Claims as Employees Return to Work
The content in this blog post is for general information purposes only and should not be considered legal advice. Specific legal questions should be directed to your institution’s legal counsel.
In a recent CUPA-HR webinar, “Avoiding ADA Compliance Pitfalls in a COVID-19 World,” 71 percent of polled participants said they are somewhat worried and 22 percent said they are extremely worried about increasing ADA requests as employees return to work.
Rae T. Vann, shareholder with Carlton Fields, shared several tips and strategies for higher ed HR pros to address these concerns in a fair and consistent manner.
Be Aware of GINA Implications
According to the Equal Employment Opportunity Commission (EEOC), employers cannot ask employees if their family members have COVID-19 symptoms. Such information violates employment provisions of the Genetic Information Nondiscrimination Act (GINA). GINA bars the acquisition of an individual’s genetic information unless the acquisition falls within one of six very narrow statutory exceptions (which are not applicable in this situation). If an employer asks an employee if their spouse or child has COVID-19, they are not asking about the employee’s medical condition, but about the manifestation of disease in a family member. This violates GINA because the manifestation of disease in a family member is considered to be an individual’s genetic information. However, the EEOC makes clear that employers are permitted to ask employees more generally whether an employee has been exposed to those with COVID-19 symptoms.
Undue Hardship Is Not Limited to Financial Burdens
Employees who are at a greater risk for being infected with COVID-19 may have asked for accommodations to continue their work. While the EEOC reinforces employer flexibility and solutions-oriented approaches to these types of situations, the commission recognizes that employers face significant difficulties in providing certain accommodations in the current circumstances. Higher ed HR pros should be aware that undue hardship means any accommodation that would be unduly costly or extensive. Undue hardship does not only include accommodations that would cause an employer to be under a financial strain, but it also encompasses accommodations that are substantial or disruptive or that fundamentally alter the nature of the business. An accommodation might look cost-free on paper, but could be overly disruptive or alter the nature of the business. In this case, employers may be able to invoke the undue hardship defense.
Watch Out for Harassing Behaviors
Workplace bullying, incivility and harassment, if left unchecked, will create a host of employee relations issues that will be exacerbated by the sense of anxiety employees already feel due to COVID-19, as well as legal and compliance-related risks that may follow. Employers should take time to reinforce their values and their commitment to employee safety and heath, but also remind employees of what is expected of them in terms of workplace conduct and performance.
To learn about other best practices and strategies for address increasing ADA claims, watch the archived webinar, “Avoiding ADA Compliance Pitfalls in a COVID-19 World.”
ADA Toolkit (CUPA-HR members-only resource)
What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (EEOC, updated 9/8/20)