FAQ: Employee Rights and COVID-19 Risks

Question: I have an autoimmune form of arthritis and am afraid of getting COVID-19 if I return to work. What are my legal rights?

A: Under the Americans With Disabilities Act (ADA), you have the right to request a reasonable accommodation and your employer must provide it if it does not create “undue hardship” – that is, if the accommodation does not result in “significant difficulty or expense for the employer, taking into account the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business,” according to the Equal Employment Opportunity Commission (EEOC). Your employer does not have to provide an accommodation that poses such a hardship but must consider alternative accommodations. This applies to employers with 15 or more employees.

Teleworking is considered a reasonable accommodation. In this pandemic, if an employee with a disability is at higher risk of contracting COVID-19 and asks to telework to reduce their exposure, the employer must consider the request under the ADA and take measures to accommodate it, according to the EEOC’s Pandemic Preparedness in the Workplace and ADA.

Question: I haven’t told my employer that I have autoimmune arthritis. Do I have to prove it to receive accommodations?

A: If your disability isn’t obvious or you haven’t already disclosed it, your employer may ask for medical documentation to confirm your condition and your accommodation needs, according to the Job Accommodation Network (JAN, a service funded by the U.S. Department of Labor’s Office of Disability Employment Policy). But in the current pandemic, “employers should remember that because of the health crisis many doctors may have difficulty responding quickly. There may be other ways to verify the existence of a disability,” JAN advises. “For example, a health insurance record or a prescription may document the existence of the disability. If the employer is waiting to receive documentation, it may want to provide the accommodation on a temporary basis. This could be particularly critical where the request is for telework or leave from an employee whose disability puts them at higher risk from COVID-19.”

Question: I am in the higher-risk group but my employer is not allowing me to telework, even with a doctor’s note and even though some other employees are teleworking. What should I do?

A: You can file a complaint with the EEOC. “However,” says JAN Principal Consultant Linda Batiste, “we often suggest that before deciding whether to file a complaint, an employee might try putting something in writing to the employer asking why the accommodation was denied (if the employer didn’t say) and asking to meet with the employer to discuss the situation further and to explore other options if needed. Sometimes employers will reconsider after further discussion or might give the employee a valid reason for denying the accommodation, which could help move the conversation toward other accommodation options.”

Question: My employer has fewer than 15 employees, so it doesn’t have to comply with the ADA. Do I have any other protections?

A: “Some states have similar laws that apply to smaller employers,” says Batiste. Check with the enforcement agency in your state to find out more.

Question: I can’t do my job by teleworking. What other options do I have?

A: You can ask for a leave of absence as an accommodation under the ADA, says Batiste. Otherwise, talk to your supervisor about other possible accommodations that will reduce your exposure, such as providing a separate workspace and providing parking so you don’t have to take public transportation. Check the Centers for Disease Control and Prevention (CDC) website for additional steps to stay safe.

In addition, you might be eligible for paid leave under the Families First Coronavirus Response Act (FFCRA). This legislation reimburses employers who keep workers on payroll when the business is closed during the pandemic. It applies to government and public school employees and to those who work for companies with 50 or more employees. If you are an independent contractor, you may be eligible for unemployment benefits under the Coronavirus Aid, Relief and Economic Security Act (CARES), which says that states may extend unemployment compensation to people who aren’t generally eligible, such as independent contractors and those seeking temporary work. Each state decides separately how to implement it.

The FFCRA, which is effective until December 31, 2020, includes two parts: paid sick leave and paid expanded family and medical leave.

It provides relief for employees who are under a quarantine or isolation order by a local government or under the advice of your health care provider (such as your doctor or nurse practitioner); those who care for someone in quarantine; those who have COVID-19 symptoms; and those who must care for a child as a result of school closings, shelter-in-place mandates or other COVID-19 repercussions.

Covered employees are eligible for up to two weeks (80 hours) of paid leave at their regular pay rate if they cannot work (or telework) because they are quarantined or experiencing COVID-19 symptoms. If the employee can’t work because they are caring for someone in quarantine or for a child whose school is closed, they are eligible for up to two weeks of paid sick leave at two-thirds of their regular rate. Under the expanded family and medical leave, an employee who has been employed for at least 30 days and has to care for a child because schools are closed is eligible for up to 10 additional weeks of paid leave at two-thirds of their regular pay rate.

The Department of Labor has more information about unemployment insurance relief.

Question: What if I’ve already exhausted most of my unemployment benefits?

A: You may be eligible for an extension under the CARES Act.                                                                                            

Question: I am not in the higher-risk group, but I am caring for someone who is, and I don’t want to risk bringing the virus home to them.

A: The ADA does not cover caregivers (or other groups that are at high risk but not disabled, such as people over 65). But as part of the Families First Coronavirus Response Act (FFCRA), the Emergency Paid Sick Leave Act requires certain employers to provide up to 80 hours of paid sick leave to employees who cannot work because they are caring for someone under mandatory quarantine or who is under self-quarantine on the advice of a doctor. It is up to states to determine how to administer the federal relief funding, so contact your state unemployment insurance office for more information.

Question: I am not in the high-risk group, but my job requires me to interact with people who might be and I’m afraid of going back to work. Can I collect unemployment benefits if I don’t go back to work?

A: Most states will not provide unemployment compensation if a person has the option to work and chooses not to. The relief packages passed by Congress, however, provide exceptions if your child requires your care because schools are closed or if you are caring for someone who is under quarantine. Talk to your employer about working out an arrangement that you’ll be more comfortable with.

Question: I can’t afford to stay out of work any longer, but I want to minimize my risk. What measures can I take, and what should I expect my employer to do to ensure safety?

A: If you believe you are sick, stay home. Follow the same safety measures at work that you take elsewhere: wash your hands frequently and use hand sanitizer when you don’t have soap and water; wear a mask and gloves when you’re around other people; cover coughs and sneezes with your inside elbow or a tissue (and throw it away immediately); stay at least six feet away from others.

Don’t use coworkers’ phones, computers, tools or other equipment if you can avoid it; if you must use them, wipe them down with a disinfectant and wear gloves then dispose of them. Limit contact with other people as much as possible. Your employer also should be taking measures to ensure work spaces are routinely cleaned and disinfected; to make sure staff use masks and sanitizers; and to make arrangements to reduce contact, whether that means closing gathering areas, cancelling unnecessary travel, encouraging workers to telework, staggering shifts, or restricting personnel to certain designated spaces. Depending on your industry, you may consider limiting in-person meetings to a set number of attendants with adequate space for distancing; reducing the number of tables or chairs, with at least 6 feet between them, for customers; and using barriers or markings to enforce space between customers. Find more industry-specific guidance from the Occupational Health and Safety Administration (OSHA), the Department of Labor and the CDC.

Employers can help their employees who have arthritis as well as their organization with free information and resources from the Arthritis Foundation. Learn more at Arthritis@Work.

Additional resources:

U.S. Department of Labor, Families First Coronavirus Response Act

Department of Labor, Unemployment Insurance Relief During COVID-19

Department of Labor state unemployment insurance contacts

Job Accommodation Network

U.S. Equal Opportunity Commission, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act

U.S. Health & Human Services Office for Civil Rights in Action Bulletin: Civil Rights, HIPAA and the Coronavirus Disease 2019

Occupational Health and Safety Administration, COVID-19

CDC Workplace reopening guidance

CDC mitigation strategies

ADA: Disability and COVID-19