Disability Rights Texas Handout
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Table of Contents
Disability Discrimination at Work Now That COVID-19 is Here
Who’s covered by the law?
Which employers are covered by the laws against disability discrimination? The laws cover private employers with 15 or more employees. The laws also cover most government agencies, employment agencies, and unions. Finally, even private employers with fewer than 15 employees may be covered if they receive federal money.
Changes employers are making
Because of COVID-19, my employer or my workplace is closing permanently, and I will be out of a job. I have a disability. Is that discrimination? Generally no, because the closure will affect all employees equally. But if some of the workers are kept on, transferred, or given help to find another position, you may be entitled to similar treatment, depending on the details.
Because of COVID-19, my employer is moving its business online, but my own job can’t be done online. I have a disability. Do I have a discrimination claim? The decision to change to online operations is not an ADA violation. If the employer is only doing this temporarily, you might consider asking for temporary leave, or a transfer to another position.
My employer is moving its business online, which I am OK with, but I have a vision or hearing disability, and need special devices or software. What are my rights? You should ask your employer for what you need, and if it’s not too expensive, your employer should provide it to make sure that you can do your work online. If money is a problem, your employer can get tax credits, or the state’s vocational-rehabilitation agency may pay for software or devices. In Texas, visit the Texas Workforce Commission website page on vocational rehabiliation services.
My employer is making workers apply for new positions because of all the changes. Is that legal? It may be, if the employer really is making big changes to, or getting rid of, several jobs. But the employer may need to give you accommodations if you need them for the application process, and it can’t prevent you from applying just because you have a disability or need an accommodation.
Because of fears about COVID-19, my employer has started some new policies. Is it legal for them to:
- Ask employees returning from travel about their exposure? Yes.
- Ask an employee why he or she has been absent from work? Yes.
- Require things like hand washing? Yes.
- Require us to wear masks, gloves, or other protective equipment? Yes. But the employer may need to make reasonable accommodations because of your disability, like providing non-latex gloves, or gowns that fit over wheelchairs.
- Take our temperatures? Yes. (This is not normally allowed, but it is now because of COVID-19.)
- Ask me if I have symptoms like fever, chills, cough, shortness of breath, or sore throat? Yes. (This is not normally allowed, but it is now, because of COVID-19.)
- Require a medical note (or similar) saying that I am OK to return to work from medical leave? Yes.
- Delay my start date because I have symptoms? Yes.
Disclosing information about your disability
I disclosed information about my disability. Does my employer have to keep it confidential? Generally yes. It should only be shared with those who have a need to know. But remember that your employer can ask others if they had contact with any employee diagnosed with COVID-19.
I voluntarily disclosed that I have a condition that puts me at higher risk. Can my employer force me to take leave or work from home? Only if continuing at work would pose a serious risk to you or others in the workplace, and that risk can’t be lowered by a reasonable accommodation.
I do not have COVID-19, but I have another disability that puts me at higher risk if I get the disease. Do I have the right to a reasonable accommodation? Yes. That might include working from home. It could also include a reasonable period of leave, but that may be harder, because you should normally give a return-to-work date for any leave, and it is hard to know how long this pandemic will last.
If I ask for an accommodation and my employer requires medical information, do they have to keep the information confidential? Yes. Your employer should only share the information with those who have a need to know. You may want to remind your employer of its privacy obligations.
Responding to possible COVID-19 cases
I have COVID-19. Can my employer force me to take leave? Yes.
I have no temperature and no symptoms. Can my employer ask me if I have medical conditions that would make me especially vulnerable to COVID-19? No.
I have not been diagnosed with COVID-19. Can my employer force me to take leave just because I have symptoms associated with the disease? Yes.
I was diagnosed with COVID-19, and my employer immediately fired me. Is that legal? Probably not. We believe that the condition is likely a covered disability. Your employer can exclude you from the workplace, but it should normally accommodate you, for example by letting you work from home or by giving temporary leave.
I do not have COVID-19 but my employer fired me because it thinks I do. Is that legal? Probably not. As soon as possible, you should give your employer something confirming that you do not have it, like a doctor’s letter or a test result.
My employer fired me because my family member tested positive for COVID-19. Is that legal? Probably not. It may be OK for the employer to send you home if you have been exposed, but if you have leave saved up, that is normally all that is required to keep the workplace safe. You may also have the right to take FMLA or emergency leave under other laws. See the question about taking care of a family member in the next section.
COVID-19 and Accommodations
My employer is making changes because of the virus, and is taking away my accommodations. Can it do that? Generally no. The employer must normally continue reasonable accommodations that are unrelated to the pandemic, unless doing that would be very difficult or very expensive.
I have been diagnosed with COVID-19. Do I have a right to a reasonable accommodation? Probably, assuming COVID-19 is a disability, and if there is a reasonable accommodation available.
My family member has been diagnosed with COVID-19. Can I
take off to care for them, as a reasonable accommodation? Not as a reasonable accommodation. But you should be able to take any accrued leave. And you may also have the right to take FMLA or emergency leave under other laws; for more information, see Texas Rio Grande Legal Aid’s resource on taking time off work because of the coronavirus.
I do not have COVID-19, but my anxiety about it has caused my mental-health condition to flare up. Can I get a reasonable accommodation? Yes. That might include working from home, or a reasonable period of leave.
If I have a right to a reasonable accommodation, what should I ask for? That varies, and depends on your job duties and your own condition. Accommodations might include:
- Working from home, and things needed to make working from home successful, like a larger screen or screen-reader software for an employee with low vision, or video relay or video-remote interpreting for employees with deafness
- Mask, gloves, respirator, or other protective equipment
- Isolation or “social distancing”
- Temporary leave. If you have any paid leave saved up, you can use that, and new laws may give you additional rights to leave. See the question above in this section about taking care of a family member. Otherwise, it can be unpaid
- Giving some of your non-essential functions to others
- Reassigning you to another position
- Other things
How do I ask for an accommodation? There are no special rules or magic words. But it helps to put it in writing, and to use your employer’s own form if there is one. It can also help, and can save time, if you give a doctor’s letter explaining your condition and need. Even if you do not volunteer such a letter, your employer can ask for medical documentation. And if you are also asking for leave under the Family and Medical Leave Act (FMLA), you should make any request for a reasonable accommodation separate from any FMLA request or FMLA forms. Read more about your FMLA rights on the Texas RioGrande Legal Aid website.
I asked for an accommodation, and my employer immediately fired me. Is that legal? Maybe not. Your employer cannot retaliate against you for asking for a reasonable accommodation. Your employer may also violate the law if it retaliates against you for asking for leave under the FMLA or under the new emergency leave law. [See the question above in this section about taking care of a family member.]
What should I do next?
If I think I have been discriminated against, what do I do next? The next step may be to file a “charge of discrimination” with the EEOC, or with the state or local fair-employment office. There is more information on this in Questions 39 to 48 in the Disability Rights Texas handout on employment discrimination. Many of these offices may be closed to the public right now, so you may need to file your charge by email, fax, or regular mail. It helps if you have proof of when you filed it.
Where can I get more information about disability discrimination now that COVID-19 has arrived? Visit the EEOC’s special web page on the ADA, Rehab Act, and COVID-19.
Created: March 20, 2020
Publication Code: EM12
Disclaimer: Disability Rights Texas strives to update its materials on an annual basis, and this handout is based upon the law at the time it was written. The law changes frequently and is subject to various interpretations by different courts. Future changes in the law may make some information in this handout inaccurate.
The handout is not intended to and does not replace an attorney’s advice or assistance based on your particular situation.