As an employment lawyer, I’ve been pretty busy these past couple of week reviewing, revising, and creating return-to-work policies for clients. I’ve got lists. My lists have lists.
There’s the social distancing protocol list, hand sanitizer/hand-washing list, and the various federal, state, and local mandates and recommendations, just to name a few. I’m sure you’ve seen the myriad checklists out there for businesses able to reopen so that they may do so safely.
One aspect of reopening that may escape notice with all of precautions is an uptick of accommodation requests.
What am I talking about?
Well, when an employer knows (or should know, in some jurisdictions) that an employer has a disability, the Americans with Disabilities Act (ADA) requires the employer to engage in an interactive process to determine, with the employee, what reasonable accommodations might be available to help an employee with a physical or mental health impairment perform the essential functions of the employee’s job.
As I wrote here, a reasonable accommodation is simply a change in the way duties are performed to help a disabled employee perform his or her job duties or enjoy the benefits and privileges of employment.
The idea is that the employer and employee work together so that an accommodation fits the employee’s functional limitations yet doesn’t impose an “undue burden” on the employer.
What’s an undue burden? There’s no one-size-fits-all definition here. An undue burden or hardship requires an individualized consideration of circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense to an employer. There are several factors to consider in an undue hardship determination.
Reasonable Accommodations During the COVID-19 Pandemic
We are living in a strange and unprecedented time. It’s a worldwide pandemic, after all, and life has changed.
However, the ADA’s requirement to engage in the interactive process (read about it here) to determine available reasonable accommodations for an employee with a disability remains—the pandemic does not release employers of their obligations to provide reasonable accommodations.
Recently, the Equal Employment Opportunity Commission (EEOC) observed that the existence and meteoric spread of COVID-19 has increased employee requests for reasonable accommodations. The EEOC predicts that this number will keep increasing if businesses reopen before COVID-19 is contained in any given area.
The EEOC Has Been Busier Than Ever
With an increase in accommodation requests comes an increase in charges of discrimination when the interactive process breaks down or employers fail to meet their ADA obligations.
The head of the U.S. Equal Employment Opportunity Commission’s New York office reports an uptick in COVID-19-related charges filed recently all accusing an employer of violating the ADA’s accommodation provisions.
Earlier this month, the EEOC provided additional guidance for managing employees’ requests for reasonable accommodations. Here’s a refresher summary:
- If an employee has an underlying condition that increases the risk of severe illness from COVID-19 should the employee become infected, the employee or his/her/their medical provider must request an accommodation verbally or in writing. Nothing new here. No magic words need be spoken to request an accommodation and require an employer to engage in the interactive process.
- If an employee does not request an accommodation even though the worker’s supervisor knows the person has an underlying condition and is worried about the employee returning to the workplace because contracting COVID-19 would increase the employee’s risk of being sicker, there is nothing for the employer to do. A business owner cannot exclude an employee with a disability from the workplace because of its own fear unless the employee’s disability poses a “direct threat” to that person’s health that cannot be eliminated or reduced by reasonable accommodation. This is a high standard with, of course, consideration of many factors (a subject for another day).
- Even if a “direct threat” is posed, reasonable accommodations—such as protective gowns, masks, gloves, and other equipment and protection—may reduce or even eliminate said threat.
As to this last, an employer may accommodate an employee with an underlying condition by providing some of the same accommodations it would normally under the ADA:
- elimination or substitution of “marginal” functions (i.e., incidental job duties and not essential functions of a particular job, or
- temporary modification of work schedules, or
- increasing social distancing by moving a person’s workspace.
The point is that effective accommodations depend on an employee’s job duties, the workplace itself, and the type of job and position.
As ever, communication is key here. Talk to your employees, i.e., engage in an “interactive discussion.” Determine what your employee needs and what you, as the employer, can provide without undue hardship. Don’t be afraid to put temporary measures in place while you wait to obtain additional information about an employee’s functional limitations, if needed.
A wide range of reasonable accommodations is likely to exist for any given underlying condition. Check the EEOC website, the Job Accommodation Network (JAN), or consult with an employment attorney (I am available—I don’t just write blog posts). Finally, yet critically, document any interactions with the employee, and remember that the ADA duty to engage in an interactive process to determine how best to accommodate an employee with a disability is an ongoing one.
Employers, if your return-to-work or reopening policies do not include reasonable accommodation requests, add that to the list. Along with extra bottles of hand sanitizer, of course.