Posted on by Chad Young

POLICY BRIEF: 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 State Exchange on Employment & 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 states can tailor to meet their needs and goals. To this end, SEED partners with leading intermediary organizations that serve as trusted sources of information to state and local policymakers.

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 Sept. 8, 2020.

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

The guidance also addresses what an employer should know about COVID-19 and other equal employment opportunity laws including 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:

  • 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
    • 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
    • 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 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 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 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 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 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, the CDC issued the following guidance:

Employers and Businesses

The CDC developed a Toolkit for Businesses and Workplaces (updated July 17, 2020). The toolkit addresses frequently asked questions and provides guidance and planning documents, web resources, factsheets and other resources.

On July 22, 2020, the CDC updated SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces. This 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 Aug. 3, 2020, the CDC updated guidance on Returning to Work, including considerations for returning to work.

The 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.

The CDC webpage, Resources for Businesses and Workplaces (updated Aug. 25, 2020), includes three recorded conference calls, as well as guidance on deciding when to open, mitigation strategies, prevention and support and more.

Health Care Professionals

The CDC’s Coronavirus Disease 2019 Information for Healthcare Professionals webpage (updated Aug. 16, 2020) provides an overview of what health care 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 health care 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 Aug. 4, 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 10, 2020) describes the landscape of telehealth services and provide considerations for health care 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 (added June 18, 2020) assists with assessment of risk, monitoring and work restriction decisions for health care 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 (added July 11, 2020) are intended to be used by healthcare facilities and public health authorities in non-U.S. health care settings, particularly focusing on low- and middle-income countries, assisting with the management of health care 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 Aug. 10, 2020). Guidance for occupational health programs and public health officials making decisions about return to work for health care personnel with confirmed or suspected COVID-19.

Additional CDC Guidance

Additional information and guidance from CDC are available on its Coronavirus Disease 2019 webpage. This website lists all CDC guidance in chronological order.

U.S. DEPARTMENT OF LABOR

The U.S. Department of Labor website includes a special section identifying Coronavirus Resources, including the following: 

Workplace Safety

The U.S. Department of Labor (USDOL) Occupational Safety and Health Administration (OSHA) offers resources to help employers and workers prepare for and respond to coronavirus in the workplace:

Wages, Hours and Leave

USDOL’s Wage and Hour Division (WHD) 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 and job-protected leave under the Family and Medical Leave Act.

Additional guidance includes:

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) 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
  • 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.

Federal Contractors

The Office of Federal Contract Compliance Programs issued a National Interest Exemption to facilitate response efforts for COVID-19 to facilitate response efforts for 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.

COVID-19 Quick Employment Tips

The U.S. Department of Labor 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.

• View “COVID-19 Quick Employment Tips: Mental Health”

• View “COVID-19 Quick Employment Tips: Reasonable Accommodations”

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

Civil Rights and HIPAA

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (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
    • Respecting requests for religious accommodations in treatment and access to clergy or faith practices as practicable

HHS’s OCR resolved two complaints involving COVID-19 rationing and the ADA (OCR press releases for resolutions to OCR complaints in Alabama, Pennsylvania, Tennessee and Utah). 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 during resource-constrained emergencies, such as the COVID-19 pandemic. On Aug. 20, 2020, OCR resolved a case against Utah involving crisis standards of care.

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 the COVID-19. CMS also updated its COVID-19 Frequently Asked Questions (FAQs) for State Medicaid and Children’s Health Insurance Program (CHIP) Agencies (updated June 30, 2020).

U.S. FOOD AND DRUG ADMINISTRATION

The U.S. Food and Drug Administration (FDA) issued guidance on COVID-19 diagnostic testing about what may or may not be considered safe and accurate testing. In addition, FDA issued:

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
  • Additional resources

FEMA hosted a two-part webinar series on how to create effective, accessible communications throughout the disaster cycle:

U.S. DEPARTMENT OF JUSTICE

The Assistant Attorney General for Civil Rights at the U.S. Department of Justice (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.

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.

Recent articles by JAN concerning COVID-19 and reasonable accommodations include:

EMPLOYER ASSISTANCE AND RESOURCE NETWORK ON DISABILITY INCLUSION  

In August 2020, The Employer Assistance and Resource Network on Disability Inclusion’s (EARN) developed a policy brief “COVID-19 and Job Applicants and Employees with Disabilities: Emerging Practices to Employ and Protect Workers.” The policy brief highlights emerging practices that employers may use as workers return to the workplace during and after the COVID-19 pandemic in ways that facilitate equal employment opportunity for qualified individuals with disabilities and protect the health and safety of all employees.

The EARN 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. 

On April 1, 2020, EARN hosted a webinar titled, “The ADA at Work: Considerations for COVID-19” to discuss balancing guidance on COVID-19 containment from the CDC with EEOC guidance on the ADA. Guest experts from two regional ADA Centers presented on the implications of the pandemic on disability-related inquiries, medical examinations and interpreting direct threat. Reasonable accommodations for telework, requests for which have spiked due to the required social distancing period, was also discussed.

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.