Portable Sanitation Association International

ASSOCIATIONINSIGHT Portable Sanitation Association International News BIWEEKLY EDITION JUNE 24, 2020 Page 21 5. Is an employee entitled to an accommodation under the ADA to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition? No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. For example, an employee without a disability is not entitled to telework as an accommodation to protect a family member with a disability from potential COVID-19 exposure. Of course, employers are free to provide such flexibilities if they choose. An employer who chooses to offer additional flexibilities beyond what the law requires, however, should be careful not to engage in disparate treatment on a protected EEO basis. Return to Work 1. As government stay-at-home orders and other restrictions are modified or lifted, what steps can we take consistent with the ADA to screen employees for COVID-19 when entering the workplace? The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time. For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return by certain types of critical workers. Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion. 2. We require workers to wear personal protective equipment (PPE) and engage in infection control practices. Some employees ask for accommodations due to a need for modified PPE. Do we have to grant these requests? An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols). What You Should Know about COVID-19, ADA, and EEO Laws…continued from page 16 Continued on page 22

• Cover