COVID 19: FEDERAL DISABILITY-SPECIFIC AND OTHER RELATED GUIDANCE
Currently, state and local policymakers are adopting and implementing policies in response to the COVID-19 pandemic. This policy brief summarizes guidance issued by Federal Government agencies that can assist in ensuring state and local policy aligns with our nation’s civil rights laws and other disability-related policies.
These Federal Government agencies include the:
Also included in this policy brief are resources developed by the Job Accommodation Network, Employer Assistance and Resource Network on Disability Inclusion and Partnership on Employment and Accessible Technology.
The White House issued a “National Strategy for the COVID-19 Response and Pandemic Preparedness” on January 21, 2021. The National Strategy includes seven goals:
- Restore trust with the American people;
- Mount a safe, effective, comprehensive vaccination campaign;
- Mitigate spread through expanding masking, testing, treatment, data, workforce and clear public health standards;
- Immediately expand emergency relief and exercise the Defense Production Act;
- Safely reopen schools, businesses and travel while protecting workers;
- Protect those most at risk and advance equity, including across racial, ethnic and rural/urban lines; and
- Restore U.S. leadership globally and build better preparedness for future threats.
In furtherance of the National Strategy, the White House has issued, among others, the following executive orders:
On April 21, 2021, President Biden released a Fact Sheet calling on employers to use their unique resources to make commitments to provide accurate information about how people can get vaccinated, why people should get vaccinated and incentivize all Americans to get vaccinated. President Biden also called on employers to offer full pay to their employees for any time off needed to get vaccinated and for any time it takes to recover from the after-effects of vaccination or recover from that vaccination.
On July 26, 2021, the White House releasedFact Sheet: Biden-Harris Administration Marks Anniversary of Americans with Disabilities Act and Announces Resources to Support Individuals with Long COVID.
On July 29, a document was issued titled Safer Federal Workforce Task Force COVID-19 Workplace Safety: Agency Model Safety Principles. The purpose of this document is to provide model safety principles for executive departments and agencies for their COVID-19 workplace safety plans. In Executive Order No. 13991, President Biden established the Safer Federal Workforce Task Force to oversee the development and implementation of agency COVID-19 workplace safety plans across the Federal Government. Agencies should incorporate these principles into their existing COVID-19 workplace safety plans. Also, agencies with onsite contractors should address how the protocols are being applied to contractor personnel to promote federal workplace safety in the context of COVID-19.
Among other things, the safety principles specify that consistent with CDC guidance, in areas of high or substantial transmission (see the CDC COVID-19 Data Tracker County View), federal employees, contractors and visitors must wear a mask inside federal buildings, except for the limited exceptions discussed in the section on Face Masks and Physical Distancing. Individuals who are not fully vaccinated must wear a mask regardless of community transmission level. Federal agencies need to ask about the vaccination status of federal employees and onsite contractors—employees and onsite contractors must sign an attestation confirming their vaccination status, or they will be treated as not fully vaccinated for purposes of safety protocols. Federal agencies also must establish a program to test not fully vaccinated federal employees and onsite contractors weekly or twice-weekly.
In the vast majority of cases, employees who are not vaccinated due to disability or religious practices or beliefs will be able to follow the safety protocols for not fully vaccinated individuals as a reasonable accommodation. In the rare case where they cannot, or where it is otherwise required by law, other reasonable accommodations should be made, barring undue hardship. Some individuals may require accommodations under applicable law relating to masking requirements, and such accommodations should be in accordance with existing Equal Employment Opportunity Commission guidance (see below).
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
The Americans with Disabilities Act (ADA) and the Rehabilitation Act
The Equal Employment Opportunity Commission (EEOC) released, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws,” which was last updated on June 28, 2021.
This resource addresses disability-related topics such as:
- Disability-related inquiries and medical exams;
- Confidentiality of medical information;
- Hiring and onboarding;
- Reasonable accommodation;
- Return to the workplace; and
The guidance also addresses what an employer should know about COVID-19 and other equal employment opportunity laws such as Title VII of the Civil Rights Act, the Age Discrimination and Employment Act and the Genetic Information Nondiscrimination Act.
More specifically, with respect to the ADA and the Rehabilitation Act, the guidance includes explanations relating to the following:
- With respect to disability-related inquiries and medical exams:
- Adopting screening protocols that are implemented consistent with advice from the Centers for Disease Control and Prevention (CDC) and public health officials regarding whether, when, or for whom testing or other screening is appropriate;
- Requesting information from an employee who calls in sick, taking body temperatures of employees and permitting viral tests to determine if an applicant or employee has an active case of COVID-19; and
- In accordance with current CDC Interim Guidelines, not allowing employers to require antibody testing before permitting employees to re-enter the workplace.
- With respect to confidentiality of medical information:
- Maintaining all information about an employee’s illness related to COVID-19 as a confidential medical record; and
- The fact that information related to COVID-19 is considered medical information does not prevent the manager from reporting to appropriate employer officials so that they can take action, consistent with guidance from CDC and other public health officials.
- With respect to the provision of reasonable accommodations, examples (such as telework and modified protective gear) and explanations on how the ADA applies when an employer knows that an employee has a medical condition identified by the CDC that might place him or her at “higher risk for severe illness” and is concerned that his or her health will be jeopardized upon returning to the workplace, but the employee has not requested an accommodation.
- With respect to returning to the workplace, modifications or lifting of government stay-at-home orders and other restrictions in an employer’s area, inviting employees to request flexibility in advance of returning to the workplace and employee screening (including alternative methods of screening) that is consistent with advice from the CDC and public health authorities for their workplace.
- With respect to vaccinations:
- Federal Equal Employment Opportunity (EEO) laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. Other laws, not in EEOC’s jurisdiction, may place additional restrictions on employers. From an EEO perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
- Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
- Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
- Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.
- Examples of reasonable accommodations include an unvaccinated person wearing a face mask, working at a social distance from coworkers or non-employees, working a modified shift, getting periodic tests for COVID-19, being given the opportunity to telework or accepting reassignment.
- If an employer requires vaccinations, an employer should respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability, by:
- Establishing a qualification standard that includes a requirement that an employee shall not pose a direct threat to the health or safety of individuals in the workplace (a conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the workplace);
- Making an individualized assessment of the employee’s present ability to safely perform the essential functions of the job; and
- Based on a flexible, interactive process between the employer and the employee, determining whether the direct threat can be eliminated or reduced by a reasonable accommodation (absent undue hardship) e.g., performing the current position remotely, or if not, may be eligible to take leave under the Families First Coronavirus Response Act or under the Family and Medical Leave Act.
- Employers may rely on CDC recommendations when deciding whether an effective accommodation (absent undue hardship) is available and whether to consult applicable Occupational Safety and Health Administration (OSHA) standards and guidance.
- Employers should engage in an interactive process to determine if there is a disability-related need for reasonable accommodation for an employee with a disability who is fully vaccinated.
Pandemic Preparedness and the ADA
The EEOC updated its resource, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” on March 21, 2020 in response to COVID-19. This guidance document provides background information on pandemics and ADA requirements and standards, and addresses topics such as disability-related inquiries and medical examinations; direct threat affirmative defense; and reasonable accommodations. The document also provides guidance for employers on requirements and restrictions before, during and after a pandemic.
EEOC Webinar on COVID-19
On March 27, 2020, to supplement these documents, the EEOC posted a pre-recorded webinar addressing questions arising under any of the Federal Equal Employment Opportunity Laws and the COVID-19 pandemic. The video can be viewed on YouTube. A transcript of the webinar is also available.
Resource for Job Applicants and Employees Explaining Their Rights
The EEOC posted a new resource on May 28, 2021 for job applicants and employees to explain how federal employment discrimination laws protect workers during the pandemic.
Additional information and updates from the EEOC are available on its Coronavirus and COVID-19 webpage.
CENTERS FOR DISEASE CONTROL AND PREVENTION
Accessible COVID-19 Resources
CDC posted “Easy-to-Read COVID-19 Safety” resources on its website and American Sign Language (ASL) videos on COVID-19 on its YouTube channel. These resources were developed by the COVID-19 Accessible Materials and Culturally Relevant Messages for Individuals with Disabilities Project, led by Georgia Tech’s Center for Inclusive Design and Innovation and funded by the CDC Foundation. The project delivers COVID-19 information in Braille, ASL, simplified text and other alternative formats to people with disabilities, their families and caregivers.
People with Disabilities
CDC provides guidance to people with disabilities through a dedicated webpage that identifies those who may be at increased risk of COVID-19, suggests precautions and highlights several ways people with disabilities can prepare during the outbreak.
In addition, CDC issued the following guidance:
Employers and Businesses
For employers and businesses, CDC published General Business Frequently Asked Questions (updated May 24, 2021) and guidance for Unvaccinated People Returning to Work (updated June 22, 2021), which includes considerations for returning to work.
CDC also published Updated Healthcare Infection Prevention and Control Recommendations in Response to COVID-19 Vaccination (April 27, 2021).
CDC developed a Toolkit for Businesses and Workplaces (updated January 14, 2021). The toolkit addresses frequently asked questions and provides guidance and planning documents, web resources, factsheets and other resources.
CDC published Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19) (updated March 8, 2021). The document offers guidance for businesses and employers to plan, prepare and respond to COVID-19.
On March 17, 2021, CDC updated SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces. The document provides guidance on the appropriate use of testing and does not dictate the determination of payment decisions or insurance coverage of such testing, except as may be otherwise referenced (or prescribed) by another entity or federal or state agency.
On March 17, 2021, CDC also updated Overview of Testing for SARS-CoV-2 (COVID-19), which includes a summary of considerations and current CDC recommendations regarding SARS-CoV-2 testing. Due to the significance of asymptomatic and pre-symptomatic transmission, this updated guidance further reinforces the need to test asymptomatic persons, including close contacts of a person with documented SARS-CoV-2 infection.
CDC published Interim Guidance for SARS-CoV-2 Testing in Non-Healthcare Workplaces on March 17, 2021 to provide employers with strategies for consideration of incorporating testing for SARS-CoV-2 into a workplace COVID-19 preparedness, response and control plan.
On June 16, 2021, CDC updated guidance on Returning to Work, including considerations for returning to work and how to protect yourself and others in the workplace.
The CDC webpage, Resources for Businesses and Workplaces (updated June 22, 2021), includes three recorded conference calls, as well as guidance on deciding when to open, mitigation strategies, prevention and support and more.
On October 21, 2020, CDC issued Investigating and Responding to COVID-19 Cases in Non-Healthcare Work Settings.
CDC published Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools and Homes on March 1, 2021.
On June 15, 2021, CDC published updated Guidance for Wearing Masks, which includes CDC’s considerations for wearing masks.
CDC’s Coronavirus Disease 2019 Information for Healthcare Professionals webpage (updated March 31, 2021) provides an overview of what healthcare providers should know about COVID-19, as well as answers to frequently asked questions. The resource also addresses more specific topics, such as guidance for healthcare providers on COVID-19 and pregnant women and those with underlying medical conditions; for public health personnel evaluating persons under investigation; for collection and submission of postmortem specimens; for clinical and home care; and more.
Health Care Professionals: Frequently Asked Questions (updated July 16, 2021) provides responses to questions asked by healthcare professionals, including recommendations on cleaning and disinfecting, visitation, animals and more.
Using Telehealth Services (added June 10, 2020) describes the landscape of telehealth services and provides considerations for healthcare systems, practices and providers using telehealth services to provide virtual care during and beyond the COVID-19 pandemic.
Interim U.S. Guidance for Risk Assessment and Work Restrictions for Healthcare Personnel with Potential Exposure to COVID-19 (updated March 11, 2021) assists with assessment of risk, monitoring and work restriction decisions for Healthcare Providers with potential exposure to COVID-19.
Interim Operational Considerations for Public Health Management of Healthcare Workers Exposed to or with Suspected or Confirmed COVID-19: Non-U.S. Healthcare Settings (updated February 23, 2021) are intended to be used by healthcare facilities and public health authorities in non-US healthcare settings, particularly focusing on low- and middle-income countries, assisting with the management of healthcare workers exposed to a person with confirmed or suspected COVID-19.
Criteria for Return to Work for Healthcare Personnel with SARS-CoV-2 Infection (Interim Guidance) (updated June 2, 2021) includes guidance for occupational health programs and public health officials making decisions about return to work for healthcare personnel with confirmed or suspected COVID-19.
Interim Guidance on Testing Healthcare Personnel for SARS-CoV-2 (updated February 16, 2021) provides a summary of considerations and current CDC recommendations regarding testing healthcare personnel.
Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-19) Pandemic (updated February 23, 2021) offers guidance to prevent infection among patients suspected to have COVID-19 in healthcare settings.
CDC published Key Things to Know about COVID-19 Vaccines (updated on June 25, 2021), including an overview of vaccine information, availability, cost, effectiveness, safety and more.
CDC published Interim Public Health Recommendations for Fully Vaccinated People
(updated on July 27, 2021) describing the type of activities people who are fully vaccinated can do once fully vaccinated.
CDC published Guidance for Vaccinating Older Adults and People with Disabilities: Ensuring Equitable COVID-19 Vaccine Access (May 14, 2021). This document summarizes what jurisdictions should consider when planning to vaccinate older adults and people with disabilities in the community. It also provides considerations to help jurisdictions ensure equal opportunities for vaccination of these populations.
CDC published a web page addressing vaccinations. CDC offers a tool that provides information about when an individual might be eligible for the vaccine in a particular state and provides the demographic breakdowns for each phase.
CDC published Workplace Vaccination Programs (updated March 25, 2021). Making COVID-19 vaccination part of a company’s wellness program offers many benefits to the company and its employees.
CDC published COVID-19 Vaccination Program Operational Guidance. CDC updated its guidance to emphasize importance of disability access i.e., vaccination location accessibility, communicating vaccine information and scheduling appointments.
CDC published Interim Considerations for Phased Implementation of COVID-19 Vaccination and Sub-Prioritization Among Recommended Populations (updated July 16, 2021). COVID-19 vaccination is recommended for everyone 12 years and older for the prevention of coronavirus disease 2019 COVID-19) in the United States.
Additional CDC Guidance
Additional information and guidance from CDC are available on its Coronavirus Disease 2019 webpage (updated May 28, 2021). This website lists all CDC guidance in chronological order.
U.S. DEPARTMENT OF LABOR
The U.S. Department of Labor (DOL) has issued its own DOL COVID-19 Safety Plan that includes provisions specifically applicable to people with disabilities and the ADA. The most recent update to the plan was July 23, 2021.
The DOL website includes a special section identifying Coronavirus Resources, including the following:
Disability Employment Policy
The Office of Disability Employment Policy (ODEP) has a webpage that includes resources on long COVID and released a blog discussing the impact of long COVID on workers with disabilities, including the right to reasonable accommodations.
DOL’s Occupational Safety and Health Administration (OSHA) offers resources to help employers and workers prepare for and respond to coronavirus in the workplace:
As part of the White House National Strategy for the COVID-19 Response and Pandemic Preparedness, the Executive Order 13999 Protecting Worker Health and Safety directs OSHA to issue updated guidance on COVID-19 worker protections. It also directs OSHA and the Mine Safety and Health Administration to consider issuing emergency temporary standards.
On January 29, 2021 (updated on June 10, 2021), OSHA posted guidance to employers titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” The guidance is intended to help employers and workers not covered by OSHA’s COVID-19 Emergency Temporary Standard (ETS) to identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at-risk, and to help them take appropriate steps to prevent exposure and infection. This guidance contains recommendations as well as descriptions of mandatory safety and health standards, the latter of which are clearly labeled throughout as “mandatory OSHA standards.”
The guidance recognizes that vaccines authorized by the FDA are highly effective at protecting most fully vaccinated people against symptomatic and severe COVID-19, and OSHA encourage employers to take steps to make it easier for workers to get vaccinated. The guidance recognizes that unless otherwise required by federal, state, local, tribal or territorial laws, rules and regulations, most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace where all employees are fully vaccinated.
However, for workers who are unvaccinated or who are otherwise at-risk, OSHA recommends implementing multiple layers of controls. The guidance includes several statements of particular relevance to workers with disabilities, including:
- A recognition that under the ADA, workers with disabilities may be legally entitled to reasonable accommodations that protect them from the risk of contracting COVID-19 if, for example, they cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings. Employers should consider taking steps to protect these at-risk workers as they would unvaccinated workers, regardless of their vaccination status.
- Employers should limit the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework), implementing flexible work hours (e.g., rotate or staffer shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video or web); or implementing flexible meeting and travel options, all for such workers.
- Employers should provide face coverings to unvaccinated and otherwise at-risk workers at no cost. Under the ADA, employers may need to provide reasonable accommodations for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation under Title VII of the Civil Rights Act. In workplaces with employees who are deaf or hard of hearing, employers should consider acquiring masks with clear coverings over the mouth for unvaccinated and otherwise at-risk workers to facilitate lip-reading.
- There are times where personal protective equipment (PPE) is not called for by OSHA standards or other industry-specific guidance, but some workers may have a legal right to PPE as a reasonable accommodation under the ADA. Employers are encouraged to proactively inform employees who have a legal right to PPE as a reasonable accommodation for their disability about how to make a request.
- Educate and train workers on a company’s COVID-19 policies and procedures using accessible formats and in language they understand. Communication should be in plan language that unvaccinated and otherwise at-risk workers understand, including American Sign Language or other accessible communication methods, if applicable, and in a manner accessible to individuals with disabilities.
On June 17, 2021, OSHA issued Emergency Temporary Standard for Healthcare.
On March 12, 2021, OSHA issued a directive regarding National Emphasis Program—Coronavirus 19 (COVID-19). This directive describes policies and procedures for implementing a National Emphasis Program to ensure that employees in high-hazard industries or work tasks are protected from the hazard of contracting SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2), the cause of COVID-19.
On April 20, 2021, OSHA issued guidance regarding an employer’s obligation to record adverse actions to the COVID-19 vaccine. The guidance clarifies that if an employer adopts a mandatory vaccination policy, an adverse reaction to the COVID-19 vaccine is recordable on an employer’s OSHA 300 log if the reaction is: (1) work-related; (2) a new case; and (3) meets one or more of the general recording criteria set forth in 29 C.F.R. 1904.7.
According to the guidance, if an employer requires employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. Therefore, the adverse action is recordable in the OSHA 300 log if it (1) led to the employee missing more than one day of work; (2) required medical treatment beyond first aid; or (3) resulted in restricted work or transfer to another job. As OSHA previously reported, those are the same conditions that trigger mandatory recording of other types of work-related injuries and illnesses.
Employers that recommend the vaccine, but do not require it, do not need to record adverse reactions.
Wages, Hours and Leave
DOL’s Wage and Hour Division (WHD) provides information on common issues employers and workers face when responding to COVID-19, (updated December 31, 2020) including the effects on wages and hours worked under the Fair Labor Standards Act and job-protected leave under the Family and Medical Leave Act.
On April 1, 2020, DOL announced new action regarding how American workers and employers will benefit from the protections and relief offered by the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (FFCRA). WHD posted a temporary rule issuing regulations pursuant to this new law, effective April 1, 2020. For more information, visit WHD’s FFCRA webpage.
FFCRA will help the United States combat and defeat COVID-19 by reimbursing American private employers that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons related to COVID-19. The legislation will ensure that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus, while at the same time reimbursing businesses.
WHD has also issued guidance in the form of a series of Questions and Answers.
The fact sheet accompanying the White House Executive Order Economic Relief Related to the COVID-19 Pandemic (January 22, 2021) specifies that the President is asking the Department of Labor to consider clarifying that workers have a federally guaranteed right to refuse employment that will jeopardize their health, and if they do so, they will still qualify for unemployment insurance.
NOTE: Check with your state’s unemployment insurance program regarding the rules in your state.
On March 12, 2020, DOL’s Employment and Training Administration (ETA) announced new guidance outlining state flexibilities in administering their unemployment insurance programs to assist Americans affected by the COVID-19 outbreak.
Under the guidance, federal law permits significant flexibility for states to amend their laws to provide unemployment insurance benefits in multiple scenarios related to COVID-19. For example, federal law allows states to pay benefits where:
- An employer temporarily ceases operations due to COVID-19, preventing employees from coming to work;
- An individual is quarantined with the expectation of returning to work after the quarantine is over; and
- An individual leaves employment due to a risk of exposure or infection or to care for a family member.
In addition, federal law does not require an employee to quit in order to receive benefits due to the impact of COVID-19.
On March 18, 2020, the Office of Federal Contract Compliance Programs issued a National Interest Exemption to facilitate response efforts for COVID-19.
Executive Order 13985 Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (January 20, 2021) revoked EO 13950, which, among other things, prohibited federal contractors and subcontractors from providing thorough workplace diversity training programs.
Support for Dislocated Workers and States
On March 18, 2020, DOL’s ETA announced the availability of up to $100 million in National Health Emergency Dislocated Worker Grants to help states, territories and tribal governments respond to the workforce-related impacts of COVID-19.
COVID-19 Quick Employment Tips
DOL released a series of “COVID-19 Quick Employment Tips” videos on May 1, 2020. The first is on supporting workers’ mental health during the COVID-19 pandemic and features the Employer Assistance and Resource Network on Disability Inclusion’s (EARN) Mental Health Toolkit. The second highlights resources and information on reasonable accommodations and COVID-19 from the Job Accommodation Network (JAN).
• COVID-19 Quick Employment Tips: Mental Health
• COVID-19 Quick Employment Tips: Reasonable Accommodations
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE FOR CIVIL RIGHTS
On July 26, 2021, the Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) and the Department of Justice, Civil Rights Division issued joint guidance titled “Guidance on “Long-COVID as a Disability Under the ADA, Section 504, and Section 1557.” The guidance addresses the following questions for purposes of title II of the ADA (state and local government) and title III (public accommodations):
- What is long COVID and what are its symptoms?
- Can long COVID be a disability under the ADA, Section 504, and Section 1557? (Yes. Long COVID is a physical or mental impairment and long COVID can substantially limit one or more major life activities.)
- Is long COVID always a disability? (No, individualized assessment is necessary to determine whether a person’s condition or any of its symptoms substantially limit a major life activity.)
- What rights do people whose long COVID qualifies as a disability have under the ADA, Section 504, and Section 1557? (People whose long COVID qualifies as a disability are entitled to the same protections from discrimination as any other person protected by the ADA.)
- What federal resources are available?
OCR published a bulletin titled “Civil Rights, HIPAA and the Coronavirus Disease 2019” on March 28, 2020 to help ensure that entities covered by civil rights authorities keep in mind their obligations under laws and regulations that prohibit discrimination on the basis of race, color, national origin, disability, age, sex and exercise of conscience and religion in HHS-funded programs. The bulletin explains that persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative “worth” based on the presence or absence of disabilities. Decisions by covered entities concerning whether an individual is a candidate for treatment should be based on an individualized assessment of the patient based on the best available objective medical evidence.
Additionally, government officials, health care providers and covered entities should ensure all segments of the community are served by:
- Providing effective communication with individuals who are deaf, hard of hearing, blind and visually impaired using qualified interpreters, picture boards and other means;
- Providing meaningful access to programs and information to individuals with limited English proficiency using qualified interpreters and through other means;
- Making emergency messaging available in plain language and in languages prevalent in the affected area(s) and in multiple formats, such as audio, large print and captioning, and ensuring that websites providing emergency-related information are accessible;
- Addressing the needs of individuals with disabilities, including individuals with mobility impairments, individuals who use assistive devices or durable medical equipment and individuals with immunosuppressed conditions including HIV/AIDS in emergency planning; and
- Respecting requests for religious accommodations in treatment and access to clergy or faith practices as practicable.
HHS’s OCR resolved several complaints involving COVID-19 rationing and the ADA (OCR press releases for resolutions to OCR complaints in AL, PA, TN, UT and NC.) In addition, OCR has resolved complaints with North Texas Mass Critical Care Guidelines Task Force, the Southwest Texas Regional Advisory Council and the Indian Health Service to revise each entity’s crisis standards of care guidelines to reflect best practices for serving individuals with disabilities. OCR also resolved a complaint in Connecticut involving visitation rights for persons with disabilities in hospitals who require support personnel.
In addition, HHS issued a document titled “Crisis Standard of Care and Civil Rights Laws.” This document highlights language from HHS’s OCR, National Academies of Science, Engineering and Medicine (NASEM), the Federal Emergency Management Agency (FEMA) and relevant laws that support the adherence to civil rights laws and disability rights laws in the application of Crisis Standards of Care (CS) during resource-constrained emergencies, such as the COVID-19 pandemic. Further, OCR recently worked collaboratively with the National Academy of Medicine to advise on the development of a statement on CSC guidelines during COVID-19, issued by the National Academy of Medicine (NAM) and nine other national organizations reflecting key best practices for CSC plans.
Further, HHS’s OCR has released Guidance on Federal Legal Standards Prohibiting Disability Discrimination in COVID-19 Vaccination Programs. The guidance sets out legal standards under Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act, which among other things, prohibit discrimination on the basis of disability. The guidance also includes examples of the application of the legal standards in the context of COVID-19 vaccine programs. Examples are provided under topics, such as eligibility criteria, criteria or methods of administration, reasonable modifications to policies and protocols, effective communication and program accessibility.
ACL has released Strategies for Helping Older Adults and People with Disabilities Access COVID-19 Vaccines. The document offers examples and promising practices for states, municipalities, community-based partners and anyone else working to ensure that older adults and people with disabilities can get vaccinated for COVID-19. The document describes how states and partners can improve access through:
- Outreach and education, including accessible websites and materials, to reach direct service professionals;
- Facilitating vaccine appointments, including helping with scheduling appointments and arranging for and providing transportation to and from appointments;
- Ensuring vaccination site accessibility and accommodations, including identifying barriers, ensuring accessibility of drive-thru vaccine sites and locating vaccine sites at disability and aging-friendly locations; and
- Meeting people where they are with mobile vaccination, including in-home vaccination and mobile vaccine clinics.
ACL also announced in the Federal Register the Availability of Program Application Instructions for the University Centers of Excellence in Developmental Disabilities Network, State Councils on Developmental Disabilities, Protection and Advocacy Systems Networks and Centers for Independent Living to expand COVID-19 vaccine access for people with disabilities.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, CENTERS FOR MEDICARE AND MEDICAID SERVICES
The U.S. Department of Health and Human Services’ (HHS) Centers for Medicare and Medicaid Services (CMS) developed a Coronavirus (COVID-19) Partner Toolkit to help stakeholders stay informed on CMS and HHS materials available on COVID-19. CMS also updated its COVID-19 Frequently Asked Questions (FAQs) for State Medicaid and Children’s Health Insurance Program (CHIP) Agencies (updated January 6, 2021).
On May 11, 2021, CMS issued Interim Final Rule COVID-19 Vaccine Immunization Requirements for Residents and Staff. The interim rule improves COVID-19 vaccine access for people with disabilities in congregate settings.
U.S. FOOD AND DRUG ADMINISTRATION
The U.S. Food and Drug Administration (FDA) issued guidance (updated March 25, 2021) on COVID-19 diagnostic testing about what may or may not be considered safe and accurate testing. In addition, FDA issued:
FDA has also issued guidance related to:
U.S. DEPARTMENT OF HOMELAND SECURITY, FEDERAL EMERGENCY MANAGEMENT AGENCY
On April 9, 2020 the U.S. Department of Homeland Security’s (DHS) Federal Emergency Management Agency (FEMA) issued a Bulletin on civil rights titled, “Ensuring Civil Rights During the COVID-19 Response.” The Bulletin addresses topics such as:
- Effective communication access;
- Inclusive planning, response and recovery;
- Language and physical accessibility;
- Civil rights complaints; and
- Additional resources.
FEMA hosted a two-part webinar series on how to create effective, accessible communications throughout the disaster cycle:
FEMA is responsible for managing set-up and operations for Community Vaccination Centers across the country, and now provides vaccine resources and information for people with disabilities. With other federal agencies, FEMA established a Civil Rights Advisory Group that developed a Civil Rights Checklist and Best Practice Information resource to provide states, territories and tribes a list of civil rights considerations and resources to ensure equitable vaccine access.
FEMA provides live on-demand American Sign Language interpreters at all federally supported community vaccination centers during each center’s hours of operation. FEMA also has civil rights and disability integration advisors in each of its 10 regions to advise state, local, tribal and territorial governments and other partners, ensuring the needs of people with disabilities are integrated in all facets of vaccination center operations. For further details on your region’s Disability Integration Specialist, contact FEMA at FEMA-Disability-Integration-Coordination@fema.dhs.gov.
More information about COVID-19, vaccine support, equitable vaccine access and ASL videos can be found on FEMA’s website.
FEMA’s Office of Equal Rights has issued an Advisory titled, Civil Rights Considerations During COVID-19 Vaccine Distribution Efforts. The Advisory provides a checklist for state, tribal and territorial partners as a tool for understanding and fulfilling their obligations to provide access to vaccine-related programs, activities and services in a nondiscriminatory manner.
U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL TRANSIT ADMINISTRATION
The U.S. Department of Transportation (DOT) Federal Transit Administration (FTA) has issued Frequently Asked Questions From FTA Grantees Regarding Coronavirus Disease (COVID-19), including specific questions regarding the application of the ADA (updated May 28, 2021).
U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE
According to the Internal Revenue Service Fact Sheet, the American Rescue Plan (ARP) allows small and midsize employers and certain governmental employers, to claim refundable tax credits that reimburse them for the cost of providing paid sick and family leave to their employees due to COVID-19, including leave taken by employees to receive or recover from COVID-19 vaccinations. The ARP tax credits are available to eligible employers that pay sick and family leave for leave from April 1, 2021 through September 30, 2021.
U.S. DEPARTMENT OF JUSTICE
On July 26, 2021, the U.S. Department of Justice’s (DOJ) Civil Rights Division and HHS’s OCR issued joint guidance titled “Guidance on “Long-COVID as a Disability Under the ADA, Section 504, and Section 1557.”
On July 6, 2021, the Office of Legal Counsel issued a Slip Opinion (Memorandum Opinion for the Deputy Counsel to the President) titled “Whether Section 564 of the Food, Drug, and Cosmetic Act Prohibits Entities from Requiring the Use of a Vaccine Subject to an Emergency Use Authorization.” The memorandum concludes that “section 564 of the FDCA does not prohibit public or private entities from imposing vaccination requirements, even when the only vaccines available are those authorized under Emergency Use Authorizations.” [Page 18]
DOJ has issued its own 2021 Department of Justice COVID-19 Workforce Safety Plan that includes provisions specifically applicable to people with disabilities and the ADA.
The Assistant Attorney General for Civil Rights at DOJ Eric S. Dreiband issued a statement titled “Protecting Civil Rights While Responding to the Coronavirus Disease 2019 (COVID-19).” The statement was issued to ensure that victims of illegal discrimination know where to turn if their civil rights are violated.
FEDERAL COMMUNICATON COMMISSION
The FCC has launched Emergency Broadband Benefit Program to help household struggling to pay for internet service during the pandemic.
JOB ACCOMMODATION NETWORK
The Job Accommodation Network’s (JAN) Coronavirus Disease 2019 (COVID-19) webpage highlights strategies that employers covered by the ADA should keep in mind when dealing with communicable diseases such as COVID-19 in the workplace.
Accommodation Strategies for Returning to Work During the COVID-19 Pandemic
JAN published a blog post “Accommodation Strategies for Returning to Work During the COVID-19 Pandemic.” In this blog, JAN offers general strategies for accommodating employees with disabilities to return to work during the COVID-19 pandemic.
The ADA and Reasonable Accommodations
JAN published a blog post, “The ADA and Managing Reasonable Accommodation Requests from Employees with Disabilities in Response to COVID-19” that addresses topics such as employer requirements around providing reasonable accommodations under the ADA in response to the pandemic coronavirus situation; who can receive reasonable accommodations under the ADA; and disability-related documentation for accommodation requests related to reducing risk of exposure to the coronavirus.
Stress and Mental Health Conditions
Another JAN blog post, “Coronavirus (COVID-19), Stress and Mental Health Conditions,” recognizes that temporary accommodations may help all employees who are feeling increased stress and facing personal difficulties at this time, and provides information on the ADA and the coronavirus and accommodation compliance. (See also, Supporting Employees with Mental Health and Cognitive Conditions While Teleworking.)
Recent articles by JAN concerning COVID-19 and reasonable accommodations include:
EMPLOYER ASSISTANCE AND RESOURCE NETWORK ON DISABILITY INCLUSION
The Employer Assistance and Resource Network on Disability Inclusion (EARN) has updated its website to include publications, employer COVID-19 response stories, webinars, government resources and more.
Disability-Inclusive COVID-19 Workplace Health and Safety Plans highlights components of disability-inclusive COVID-19 health and safety plans for reopening workplaces.
COVID-19 and Job Applicants and Employees with Disabilities: Emerging Practices to Employ and Protect Workers provides guidance to facilitate the employment, health, and safety of job applicants and employees with disabilities.
EARN’s policy brief, Adopting an Integrated Telework Policy for Employees With and Without Disabilities, provides a framework for adopting an integrated telework policy applicable to all employees, including employees with disabilities.
Employer COVID-19 Response Stories
EARN’s employer COVID-19 response stories highlight the efforts of various businesses to accommodate and support employees with disabilities, including those with mental health conditions, during the pandemic. The response stories feature CVS Health, EY and Merck.
EARN’s March/April Newsletter Special Edition on COVID-19 provides resources that can assist employers and others in understanding the intersection between the pandemic and disability employment policies and practices.
Getting Ahead of the Curve: Ensuring Safe, Healthy and Inclusive Workplaces During the COVID-19 Recovery (April 30, 2021) features representatives from CDC, Equal EEOC and OSHA as they discuss ways employers can ensure safe and healthy workplaces for all workers, including those with disabilities, during the COVID-19 recovery.
The ADA at Work: Considerations for COVID-19 (April 1, 2020) features a discussion about balancing guidance on COVID-19 containment from the Centers for Disease Control and Prevention with Equal Employment Opportunity Commission guidance on the Americans with Disabilities Act (ADA).
PARTNERSHIP ON EMPLOYMENT AND ACCESSIBLE TECHNOLOGY
The Partnership on Employment and Accessible Technology (PEAT) developed a webpage on Telework and Accessibility, which highlights resources to help equip employers with the information needed to ensure the digital workplace is accessible to everyone, including people with disabilities.
Telework and Accessibility
Many employers and employees have shifted to telework. PEAT developed a toolkit to help with the transition to ensure employers’ digital communications and platforms are as accessible as possible for everyone, including people with disabilities. This suite of resources offers information on creating accessible content, hosting accessible meetings and presentations, recruiting and hiring best practices, tips for teleworkers and more.
Elements of an Accessible Meeting Platform
When evaluating options, employers may want to consider these four elements to make sure remote meeting platforms are accessible. The following tip sheets offer recommendations on how to place and host an accessible meeting: