POLICY BRIEF: COVID-19: FEDERAL DISABILITY-SPECIFIC AND OTHER RELATED GUIDANCE

The State Exchange on Employment and Disability (SEED), an initiative funded by the U.S. Department of Labor Office of Disability Employment Policy (ODEP), assists states in developing effective and inclusive workforce policies that promote disability employment. Recognizing that every state is unique, SEED offers policy options and resources that states can tailor to meet their individual needs and goals. To this end, SEED partners with leading intermediary organizations that serve as trusted sources of information to state and local policymakers.

Updated on June 18th, 2020

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:

· U.S. Department of Health and Human Services, Office for Civil Rights;

· U.S. Department of Homeland Security, Federal Emergency Management Agency;

· U.S. Food and Drug Administration; and

· U.S. Department of Justice.

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.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

The 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 17, 2020.

This resource addresses disability-related topics such as:

Disability-related inquiries and medical exams;
Confidentiality of medical information;
Hiring and onboarding;
Reasonable accommodation; and
Return to the workplace.

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 and the Age Discrimination and Employment Act.

More specifically, with respect to the ADA and the Rehabilitation Act, the guidance includes explanations relating to:

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;
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 the provision of reasonable accommodations, examples and explanations on how the ADA applies when an employer knows that an employee has a medical condition identified by 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; and
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 CDC and public health authorities for their workplace.

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 COVD-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 seen on YouTube. A transcript of the webinar is also available.

Additional Information

Additional information and updates from the EEOC are available on its Coronavirus and COVID-19 webpage.

CENTERS FOR DISEASE CONTROL AND PREVENTION

People with Disabilities

The Centers for Disease Control and Prevention (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 has issued the following guidance:

Employers and Businesses

CDC published “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019” to offer information on planning, preparing, and responding to the pandemic (last updated May 30, 2020). The webpage addresses and provides resources on topics such as reducing transmission among employees; identifying exposures to COVID-19 in the workplace; educating employees on the disease; and maintaining healthy business operations and a healthy work environment.

On May 20, 2020, the agency published CDC Activities and Initiatives Supporting the COVID-19 Response and the President’s Plan for Opening America Up Again. This publication summarizes CDC’s initiatives, activities, and tools in support of the whole-of-government response to COVID-19. The document includes information on general and healthcare surveillance as well as previously posted guidance on infection control, contact tracing, and testing. Additionally, the document includes a standardized way to look at the gating criteria in the Opening Up America Again guidance and tools to assist establishments after they open; this is a supplement to the decision trees CDC released May 14.

Decisions and strategies about how to operate are implemented at the state, tribal, local, and territorial levels because every locale is different, and individual jurisdictions have the authority and local awareness needed to protect their communities.

CDC’s publication, Workplace Decision Tool: Workplaces Considerations for Reopening During the COVID-19 Pandemic, assists employers in making (re)opening decisions during the COVID-19 pandemic, especially to protect vulnerable workers. The tool reiterates that it is important to check with state and local health officials and other partners to determine the most appropriate actions while adjusting to meet the unique needs and circumstances of the local community.

The CDC webpage, Resources for Businesses and Workplaces, includes three recorded conference calls, as well as guidance on deciding when to open, mitigation strategies, prevention and support, and more.

On May 29, 2020, CDC issued specific guidance for employers titled Employers with Workers at High Risk, recognizing that as workplaces consider a gradual scale up of activities towards pre-COVID-19 operating practices, it is particularly important to keep in mind that some workers are at higher risk for severe illness from COVID-19.

CDC also has issued guidance on the following topics:

Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19

Joint CDC and Occupational Safety and Health Administration (OSHA) guidance “Meat and Poultry Processing Workers and Employers” published on April 26, 2020 provides guidance to meat and poultry processing workers and employers as they develop plans for continuing operations in the setting of COVID-19. The Meat and Poultry Processing Facility Assessment Toolkit was published on May 29, 2020.

Healthcare Professionals

CDC’s Coronavirus Disease 2019 Information for Healthcare Professionals webpage (updated June 1, 2020) 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 May 6, 2020) provides responses to questions asked by health care professionals, including recommendations on cleaning and disinfecting, visitation, animals, and more.

Using Telehealth Services (added June 9, 2020) describes the landscape of telehealth services and provide considerations for healthcare systems, practices, and providers using telehealth services to provide virtual care during and beyond the COVID-19 pandemic.

Additional CDC Guidance

Additional information and guidance from CDC are available on its Coronavirus Disease 2019 webpage.

U.S. DEPARTMENT OF LABOR

COVID-19 Quick Employment Tips

The U.S. Department of Labor (USDOL) 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 Mental Health Toolkit. The second highlights resources and information on reasonable accommodations and COVID-19 from the Job Accommodation Network.

Federal Contractors

USDOL issued a news release and a National Interest Exemption memorandum for Federal Government contractors to facilitate response efforts for COVID-19. The memorandum grants limited exemptions from some of the requirements applicable to federal contractors for a period of three months, from March 17, 2020 to June 17, 2020, subject to an extension should special circumstances in the national interest so require. The exemption and waivers granted relate to obligations under EO 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), which require that federal contracting agencies include, in all covered supply and service and construction contracts, an equal opportunity clause. It extends to all affirmative action obligations of supply and service and construction contracts, and other obligations as specified in the Federal Acquisition Regulations (FAR). The exemption and waivers do not apply to the processing of complaints of discrimination under 41 CFR 60-1.21-1.24, 41 CFR 60-300.61, and 41 CFR 60-741.61. They also do not exempt a covered contractor from their obligation to comply with other federal, state, and local civil rights laws.

Wages, Hours, and Leave

USDOL’s Wage and Hour Division (WHD) developed a webpage titled “COVID-19 and the American Workplace,” which provides information on common issues employers and workers face when responding to COVID-19, including the effects on wages and hours worked under the Fair Labor Standards Act (FLSA), job-protected leave under the Family and Medical Leave Act (FMLA), and expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA).

The FFCRA gives all American businesses with fewer than 500 employees funds to provide employees with paid leave, either for the employee’s own health needs or to care for family members. The legislation aims to 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.

On April 6, 2020, WHD published in the Federal Register temporary regulations to implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA), and emergency paid sick leave to assist working families facing public health emergencies arising out of Coronavirus Disease 2019 (COVID–19) global pandemic. This rule is effective from April 2, 2020, through December 31, 2020. This rule became operational on April 1, 2020.

The WHD webpage also offers several resources including:

Fact Sheets

Questions and Answers

Posters

Field Assistance Bulletin

Field Assistance Bulletin 2020-1: Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act (FFCRA)

Webinar

Webinar: The Families First Coronavirus Response Act (FFCRA)
- Webinar Slides (PDF)

Workplace Safety

USDOL’s Occupational Safety and Health Administration (OSHA) has a COVID-19 webpage that includes infection prevention information specifically for employers and workers. The webpage includes several resources to help employers and workers prepare for and respond to coronavirus in the workplace including Frequently Asked Questions – Cloth Face Coverings, Surgical Masks and Respirators. (June 10, 2020).

Unemployment Insurance Flexibilities

NOTE: Check with your state’s unemployment insurance program regarding the rules in your state.

USDOL’s Employment and Training Administration (ETA) issued new guidance (March 12, 2020) on 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 April 5, 2020, USDOL issued a press release announcing the publication of Unemployment Insurance Program Letter (UIPL) 16-20 providing guidance to states for implementation of the Pandemic Unemployment Assistance (PUA) program. Under PUA, individuals who do not qualify for regular unemployment compensation and are unable to continue working as a result of COVID-19, such as self-employed workers, independent contractors, and gig workers, are eligible for PUA benefits. This provision is contained in Section 2102 of the Coronavirus Aid, Relief, and Economic Security Act (CARES) Act enacted on March 27, 2020.

PUA provides up to 39 weeks of benefits to qualifying individuals who are otherwise able to work and available for work within the meaning of applicable state law, except that they are unemployed, partially unemployed, or unable or unavailable to work due to COVID-19 related reasons, as defined in the CARES Act. Benefit payments under PUA are retroactive, for weeks of unemployment, partial employment, or inability to work due to COVID-19 reasons starting on or after January 27, 2020. The CARES Act specifies that PUA benefits cannot be paid for weeks of unemployment ending after December 31, 2020.

Eligibility for PUA includes those individuals not eligible for regular unemployment compensation or extended benefits under state or federal law or pandemic emergency unemployment compensation (PEUC), including those who have exhausted all rights to such benefits. Covered individuals also include self-employed individuals, those seeking part-time employment, and individuals lacking sufficient work history. Depending on state law, covered individuals may also include clergy and those working for religious organizations who are not covered by regular unemployment compensation.

Additional guidance (including frequently asked questions) regarding unemployment insurance includes:

UIPL 24-20: The purpose of this program letter is to provide guidance and respond to state inquiries related to the Federal-State EB program and temporary changes to the program in accordance with the Families First Coronavirus Response Act, specifically Division D, Emergency Unemployment Insurance Stabilization and Access Act of 2020(EUISAA), Public Law (Pub. L.) 116-127,and the Coronavirus Aid, Relief, and Economic Security Act of 2020(CARES Act) (Pub. L. 116-136).
UIPL 23-20: Program Integrity for the Unemployment Insurance (UI) Program and the UI Programs Authorized by the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Federal Pandemic Unemployment Compensation (FPUC), Pandemic Unemployment Assistance (PUA), and Pandemic Emergency Unemployment Compensation (PEUC) Programs. The purpose of this program letter is to remind states of program integrity functions required for the regular UI program and to provide states with guidance regarding required program integrity functions for the UI programs authorized by Sections 2102 (PUA), 2104 (FPUC), and 2107 (PEUC) of the CARES Act.
UIPL 20-20: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Operating, Financial, and Reporting Instructions for Section 2105: Temporary Full Federal Funding of the First Week of Compensable Regular Unemployment for States with No Waiting Week. The purpose of this program letter is to provide states with operating, financial, and reporting instructions for the full federal funding of the first week of unemployment compensation (UC) authorized by section 2105, Temporary Full Federal Funding of the First Week of Compensable Regular Unemployment for States with No Waiting Week, of the CARES Act of 2020, Public Law (Pub. L.) 116-136.
UIPL 20-20, Change 1: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020-Pandemic Emergency Unemployment Compensation (PEUC) Program: Questions and Answers, and Revised Reporting Instructions for the PEUC ETA 227. As states have gained experience administering the PEUC program under the CARES Act, they have identified questions about aspects of the program’s operation. The purpose of this UIPL is to address those questions and provide further guidance about the PEUC program authorized by section 2107 of the CARES Act of 2020, Public Law (Pub. L.) 116-136.

UIPL 18-20: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Emergency Unemployment Relief for State and Local Governmental Entities, Certain Nonprofit Organizations, and Federally-Recognized Indian Tribes.
UIPL 17-20: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020-Pandemic Emergency Unemployment Compensation (PEUC) Program Operating, Financial, and Reporting Instructions.
UIPL 16-20: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Pandemic Unemployment Assistance (PUA) Program Operating, Financial, and Reporting Instructions.
UIPL 15-20: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Federal Pandemic Unemployment Compensation (FPUC) Program Operating, Financial, and Reporting Instructions.
UIPL 14-20: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Summary of Key Unemployment Insurance (UI) Provisions and Guidance Regarding Temporary Emergency State Staffing Flexibility.
UIPL 13-20: Families First Coronavirus Response Act, Division D Emergency Unemployment Insurance Stabilization and Access Act of 2020.
UIPL 10-20: Unemployment Compensation (UC) for Individuals Affected by the Coronavirus Disease 2019 (COVID-19).

Support for Dislocated Workers and States

On March 18, 2020, USDOL’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.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE FOR CIVIL RIGHTS