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COVID-19 and Workplace Liability:

Selected Issues Under Antidiscrimination


May 18, 2020
The COVID- 19 pandemic has forced unprecedented workplace changes and raised a host of legal issues.
Employers may struggle with how to protect workers from infection, including whether to make any
special changes for at-risk employees. Employers may worry about workers' well-being, disruptions from
absenteeism, and potential liability if an employee falls ill. Federal law requires reasonable
accommodations for one risk group, people with disabilities. At the same time, antidiscrimination statutes
restrict employers from singling out employees based on three characteristics that put them at enhanced
risk, or impose uncertain risk, for COVID- 19: disability, age, or pregnancy. This Sidebar provides general
background on antidiscrimination considerations that might arise as employers consider accommodations
for at-risk employees.

Reasonable Accommodations for At-Risk Employees Under the
Americans with Disabilities Act and the Rehabilitation Act
The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (applying ADA standards
to federal employers) protect applicants and employees from disability discrimination. Not everyone with
a medical condition has a disability, and some characteristics that may place a person at greater risk of
serious illness from COVID- 19 infection, such as being an older adult, have not previously qualified as
disabilities for ADA and Rehabilitation Act purposes.
The ADA defines disability as an impairment that substantially limits one or more major life activities,
and the Rehabilitation Act employs a substantially similar definition. The Equal Opportunity Employment
Commission (EEOC), charged with enforcing the two statutes, has taken the view that it is not yet clear
whether coronavirus infection or risk of infection amounts to a disability. The uncertainty is
understandable-much remains unknown or speculative about the disease and about how various
employers may seek to curb workplace infections as businesses reopen. And it may be possible to argue
that a characteristic that does not amount to a disability under normal conditions is a disability now,
because of an accompanying COVID- 19 risk. Courts have yet to address these questions. The ADA and

                                                             Congressional Research Service

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