With the spread of the COVID-19 pandemic, numerous cities and states have mandated infection control practices, including social distancing, mask requirements and sanitization of work areas and tools. As a result, many construction leaders now have questions as to how government guidance related to COVID-19 interacts with the Americans with Disabilities Act (ADA). For example, can a project manager enforce a mask mandate when a construction worker presents a doctor’s excuse noting breathing difficulties? Or, what if the employer is aware that an individual presents a higher risk for severe illness because of an underlying health condition, but that employee does not request an accommodation?

Thankfully, the United States Equal Employment Opportunity Commission (EEOC) recently published guidance relating to these requests that construction leaders can reference. While our goal is to summarize that guidance and provide practical advice for the construction sector, this article does not substitute for situation specific legal counsel.

Scenario 1: An employee refuses to wear a mask and produces a doctor’s note citing breathing difficulties. Must the employer accommodate such a request?

Potentially. Since the request to not wear a mask is considered an accommodation under the ADA, the employer can still require a doctor’s note when considering the accommodation.

The employer and employee should consider the following factors in determining if the accommodation is necessary: Does the stated disability limit the wearing of a mask? Does the requested accommodation address the limitation? Could another form of accommodation address the issue instead? Does the proposed accommodation enable the employee to continue performing the essential functions of his or her job?

Upon consideration, the employer has the right to decline the requested accommodation if such request would pose an undue hardship on the operation of the employer’s business under the ADA. That said, in administering workplace restrictions imposed by the COVID-19 pandemic, employers should also take care not to engage in disparate treatment based upon protective classes for members of the workforce.

Scenario 2: The employer is aware that an employee is at a higher risk for severe illness if he/she contracts COVID-19, but the employee has not requested an accommodation. Are you under duty to engage in the interactive process?

If the employer is concerned about the employee’s health, the ADA does not allow the employer to take any adverse action simply because the employer is aware that the employee is at a higher risk for severe illness. Similarly, if the employee does not request an accommodation, the ADA does not require that the employer act.

Employers should consider that a request for an accommodation may be made informally unless the employer can show that such an activity is a direct threat to the health of the employee. In this case, a direct threat defense requires the employer to show that the employee returning to work poses a “significant risk of substantial harm” to the employee or their colleagues.

Please note that, unless there is no way to provide a reasonable accommodation for the employee, an employer cannot exclude the employee from the workplace based on a direct threat defense.

Scenario 3: An employee calls in sick indicating that she is experiencing shortness of breath. How much additional information may you request to protect your workforce?

The EEOC’s guidance indicates, “[D]uring the pandemic, ADA covered employers may ask the employee if he or she is experiencing symptoms of the virus.” Symptoms regarding COVID-19 are published on the CDC’s website as well as by state and local public health agencies. If employees are experiencing COVID-19 symptoms, employers may wish to direct employees to self-quarantine.

Please keep in mind all information relating to the employee’s health condition must be maintained as a confidential medical record.

Construction-related business owners and project managers should be mindful that guidance from public health officials is ever evolving during the pandemic and they should continue to monitor guidance from public health offices in order to maintain workplace safety on construction sites. For ongoing updates, please visit the EEOC.gov.