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.

At this time, state and local policymakers are adopting and implementing policies in response to the COVID-19 pandemic. To help SEED partners share information and resources with their members, this policy brief summarizes guidance issued by federal government agencies that can assist in ensuring that state and local policy aligns with the nation’s civil rights laws and other disability-related policies.

These federal government agencies include:

Also included are resources developed by the Job Accommodation Network and Employer Assistance and Resource Network on Disability Inclusion, which are also funded by ODEP.  

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

The Americans with Disabilities Act (ADA) and the Rehabilitation Act

The Equal Employment Opportunity Commission (EEOC) released guidance titled, “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19,” which was last updated on March 19, 2020. This resource addresses topics such as the applicability of guidelines and suggestions by the Centers for Disease Control and Prevention, requesting information from an employee who calls in sick, taking body temperatures of employees, screening applicants and other guidance for employers navigating the impact of COVID-19 in the 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

Employers and Businesses

The Centers for Disease Control and Prevention (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. 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. 

Healthcare Professionals

The CDC’s “Coronavirus Disease 2019 Information for Healthcare Professionals” 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, guidance for public health personnel evaluating persons under investigation, guidance for collection and submission of postmortem specimens, guidance for clinical and home care and more.

Additional CDC Guidance

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

U.S. DEPARTMENT OF LABOR

Federal Contractors

The U.S. Department of Labor (DOL) issued a news release and a National Interest Exemption memorandum to facilitate response efforts for COVID-19. The memorandum grants limited exemptions from some of the requirements applicable to federal government contractors for a period of three months, from March 17 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

The DOL’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 Dec. 31, 2020. This rule became operational on April 1, 2020.

The WHD webpage also offers several resources:

Fact Sheets

Questions and Answers

Posters

Field Assistance Bulletin

Webinar

Workplace Safety

The DOL’s Occupational Safety and Health Administration (OSHA) has several resources to help employers and workers prepare for and respond to coronavirus in the workplace.

OSHA’s “Guidance on Preparing Workplaces for COVID-19,” developed in collaboration with the U.S. Department of Health and Human Services, aims to help employers respond in the event of coronavirus in the workplace.

OSHA’s “Temporary Enforcement Guidance – Healthcare Respiratory Protection Annual Fit” provides suggestions and options to help increase the availability of N95 filtering facepiece respirators for healthcare providers.

Finally, the OSHA COVID-19 webpage includes infection prevention information specifically for employers and workers.

Unemployment Insurance Flexibilities

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

The DOL’s Employment and Training Administration (ETA) issued new guidance 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, the DOL 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 Jan. 27, 2020. The CARES Act specifies that PUA benefits cannot be paid for weeks of unemployment ending after Dec. 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.

Support for Dislocated Workers and States

On March 18, 2020, the 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.

U.S. Department of Labor News Releases

The DOL has issued numerous news releases related to COVID-19 and the workplace, including:

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

Civil Rights and HIPPA

The Office for Civil Rights at the U.S. Department of Health and Human Services (HHS) 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 through the use of qualified interpreters, picture boards and other means;
    • Providing meaningful access to programs and information to individuals with limited English proficiency through the use of 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.

JOB ACCOMMODATION NETWORK

The ADA and Reasonable Accommodations

The Job Accommodation Network (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, “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.

EMPLOYER ASSISTANCE AND RESOURCE NETWORK ON DISABILITY INCLUSION

On April 1, 2020, the Employer Assistance and Resource Network on Disability Inclusion (EARN) hosted a webinar on, “The ADA at Work: Considerations for COVID-19” to discuss balancing guidance on COVID-19 containment from CDC with EEOC guidance on the Americans with Disabilities Act. 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.