JUNE 18, 2020
This guidance is developed by the State Exchange on Employment and Disability (SEED). SEED is an initiative funded by the U.S. Department of Labor’s 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.
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:
- Equal Employment Opportunity Commission;
- Centers for Disease Control and Prevention;
- U.S. Department of Labor;
- U.S. Department of Health and Human Services, Office for Civil Rights;
- U.S. Department of Homeland Security, Federal Emergency Management Agency;
- U.S. Food and Drug Administration; and
- U.S. Department of Justice.
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.
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 June 17, 2020.
This resource addresses disability-related topics such as:
- Disability-related inquiries and medical exams;
- Confidentiality of medical information;
- Hiring and onboarding;
- Reasonable accommodation; and
- Return to the workplace.
The guidance also addresses what an employer should know about COVID-19 and other equal employment opportunity laws such as Title VII of the Civil Rights Act and the Age Discrimination and Employment Act.
More specifically, with respect to the ADA and the Rehabilitation Act, the guidance includes explanations relating to:
- 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;
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 COVD-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.
CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC)
People with Disabilities
The Centers for Disease Control and Prevention (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, CDC has issued the following guidance:
- People Who Need to Take Extra Precautions
- Considerations When Preparing for COVID-19 in Assisted Living Facilities
- Guidance for Group Homes for Individuals with Disabilities
- Guidance for Direct Service Providers
- People with Developmental and Behavioral Disorders
- Guidance for Direct Service Providers, Caregivers, Parents, and People with Developmental and Behavioral Disorders
Employers and Businesses
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 (last updated May 30, 2020). 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.
On May 20, 2020, the agency published CDC Activities and Initiatives Supporting the COVID-19 Response and the President’s Plan for Opening America Up Again. This publication summarizes CDC’s initiatives, activities, and tools in support of the whole-of-government response to COVID-19. The document includes information on general and healthcare surveillance as well as previously posted guidance on infection control, contact tracing, and testing. Additionally, the document includes a standardized way to look at the gating criteria in the Opening Up America Again guidance and tools to assist establishments after they open; this is a supplement to the decision trees CDC released May 14.
Decisions and strategies about how to operate are implemented at the state, tribal, local, and territorial levels because every locale is different, and individual jurisdictions have the authority and local awareness needed to protect their communities.
CDC’s publication, Workplace Decision Tool: Workplaces Considerations for Reopening During the COVID-19 Pandemic, assists employers in making (re)opening decisions during the COVID-19 pandemic, especially to protect vulnerable workers. The tool reiterates that it is important to check with state and local health officials and other partners to determine the most appropriate actions while adjusting to meet the unique needs and circumstances of the local community.
The CDC webpage, Resources for Businesses and Workplaces, includes three recorded conference calls, as well as guidance on deciding when to open, mitigation strategies, prevention and support, and more.
On May 29, 2020, 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.
CDC also has issued guidance on the following topics:
- Resuming business toolkit
- General business FAQs
- Preparing small businesses and employees
- Employer information for office buildings
- Worker safety and support resources
- CDC/OSHA guidance for manufacturing workers and employers
- Guidance for cleaning and disinfecting
- Agriculture Workers and Employers
- Information for Sanitation and Wastewater Workers on COVID-19
- Interim Guidance for Mass Transit Administrators
- Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19
Joint CDC and Occupational Safety and Health Administration (OSHA) guidance “Meat and Poultry Processing Workers and Employers” published on April 26, 2020 provides guidance to meat and poultry processing workers and employers as they develop plans for continuing operations in the setting of COVID-19. The Meat and Poultry Processing Facility Assessment Toolkit was published on May 29, 2020.
CDC’s Coronavirus Disease 2019 Information for Healthcare Professionals webpage (updated June 1, 2020) 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; 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 May 6, 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 9, 2020) describes the landscape of telehealth services and provide considerations for healthcare systems, practices, and providers using telehealth services to provide virtual care during and beyond the COVID-19 pandemic.
Additional CDC Guidance
Additional information and guidance from CDC are available on its Coronavirus Disease 2019 webpage.
U.S. DEPARTMENT OF LABOR
COVID-19 Quick Employment Tips
The U.S. Department of Labor (USDOL) 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.
USDOL issued a news release and a National Interest Exemption memorandum for Federal Government contractors to facilitate response efforts for COVID-19. The memorandum grants limited exemptions from some of the requirements applicable to federal contractors for a period of three months, from March 17, 2020 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
USDOL’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 December 31, 2020. This rule became operational on April 1, 2020.
The WHD webpage also offers several resources including:
- Families First Coronavirus Response Act: Employee Paid Leave Rights
- Families First Coronavirus Response Act: Employer Paid Leave Requirements
Questions and Answers
- Families First Coronavirus Response Act: Questions and Answers
- COVID-19 and the Fair Labor Standards Act: Questions and Answers
- COVID-19 and the Family and Medical Leave Act: Questions and Answers
- Quick Tip: How much paid leave can employees take?
- Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)
- Federal Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)
- Families First Coronavirus Response Act Notice – Frequently Asked Questions
Field Assistance Bulletin
- Field Assistance Bulletin 2020-1: Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act (FFCRA)
USDOL’s Occupational Safety and Health Administration (OSHA) has a COVID-19 webpage that includes infection prevention information specifically for employers and workers. The webpage includes several resources to help employers and workers prepare for and respond to coronavirus in the workplace including Frequently Asked Questions – Cloth Face Coverings, Surgical Masks and Respirators. (June 10, 2020).
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) issued new guidance (March 12, 2020) 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, USDOL 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 January 27, 2020. The CARES Act specifies that PUA benefits cannot be paid for weeks of unemployment ending after December 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.
Additional guidance (including frequently asked questions) regarding unemployment insurance includes:
- UIPL 24-20: The purpose of this program letter is to provide guidance and respond to state inquiries related to the Federal-State EB program and temporary changes to the program in accordance with the Families First Coronavirus Response Act, specifically Division D, Emergency Unemployment Insurance Stabilization and Access Act of 2020(EUISAA), Public Law (Pub. L.) 116-127,and the Coronavirus Aid, Relief, and Economic Security Act of 2020(CARES Act) (Pub. L. 116-136).
- UIPL 23-20: Program Integrity for the Unemployment Insurance (UI) Program and the UI Programs Authorized by the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Federal Pandemic Unemployment Compensation (FPUC), Pandemic Unemployment Assistance (PUA), and Pandemic Emergency Unemployment Compensation (PEUC) Programs. The purpose of this program letter is to remind states of program integrity functions required for the regular UI program and to provide states with guidance regarding required program integrity functions for the UI programs authorized by Sections 2102 (PUA), 2104 (FPUC), and 2107 (PEUC) of the CARES Act.
- UIPL 20-20: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Operating, Financial, and Reporting Instructions for Section 2105: Temporary Full Federal Funding of the First Week of Compensable Regular Unemployment for States with No Waiting Week. The purpose of this program letter is to provide states with operating, financial, and reporting instructions for the full federal funding of the first week of unemployment compensation (UC) authorized by section 2105, Temporary Full Federal Funding of the First Week of Compensable Regular Unemployment for States with No Waiting Week, of the CARES Act of 2020, Public Law (Pub. L.) 116-136.
- UIPL 20-20, Change 1: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020-Pandemic Emergency Unemployment Compensation (PEUC) Program: Questions and Answers, and Revised Reporting Instructions for the PEUC ETA 227. As states have gained experience administering the PEUC program under the CARES Act, they have identified questions about aspects of the program’s operation. The purpose of this UIPL is to address those questions and provide further guidance about the PEUC program authorized by section 2107 of the CARES Act of 2020, Public Law (Pub. L.) 116-136.
- UIPL 18-20: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Emergency Unemployment Relief for State and Local Governmental Entities, Certain Nonprofit Organizations, and Federally-Recognized Indian Tribes.
- UIPL 17-20: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020-Pandemic Emergency Unemployment Compensation (PEUC) Program Operating, Financial, and Reporting Instructions.
- UIPL 16-20: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Pandemic Unemployment Assistance (PUA) Program Operating, Financial, and Reporting Instructions.
- UIPL 15-20: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Federal Pandemic Unemployment Compensation (FPUC) Program Operating, Financial, and Reporting Instructions.
- UIPL 14-20: Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Summary of Key Unemployment Insurance (UI) Provisions and Guidance Regarding Temporary Emergency State Staffing Flexibility.
- UIPL 13-20: Families First Coronavirus Response Act, Division D Emergency Unemployment Insurance Stabilization and Access Act of 2020.
- UIPL 10-20: Unemployment Compensation (UC) for Individuals Affected by the Coronavirus Disease 2019 (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.
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 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; and
- Respecting requests for religious accommodations in treatment and access to clergy or faith practices as practicable.
HHS’s OCR has resolved two complaints involving COVID-19 rationing and the ADA (OCR press releases for resolutions to OCR complaints in AL and PA). OCR also resolved a complaint in Connecticut involving visitation rights for persons with disabilities in hospitals who require support personnel.
In addition, HHS has 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.
U.S. FOOD AND DRUG ADMINISTRATION
The U.S. Food and Drug Administration (FDA) has issued guidance on COVID-19 diagnostic testing about what may or may not be considered safe and accurate testing. In addition, FDA has issued:
- FAQs on Testing for SARS-CoV-2
- Policy for Coronavirus Disease-2019 Tests During the Public Health Emergency (Revised)
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; and
- Additional resources.
U.S. DEPARTMENT OF JUSTICE
The Assistant Attorney General for Civil Rights at the U.S. Department of Justice (DOJ) Eric S. Dreiband has 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.
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:
- Engaging in the Interactive Process During the COVID-19 Pandemic
- Masks as an Accommodation Tool
- Teleconference Accessibility and Hearing-Keeping Deaf and Hard of Hearing Employees in the Loop
EMPLOYER ASSISTANCE AND RESOURCE NETWORK ON DISABILITY INCLUSION
The Employer Assistance and Resource Network on Disability Inclusion’s (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 on, “The ADA at Work: Considerations for COVID-19” to discuss balancing guidance on COVID-19 containment from 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) has 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.