On Tuesday, April 19, the American Bar Association’s Labor and Employment Law Section hosted the panel “Navigating the New Normal: Accommodations in the Pandemic Era.” The panel members were Alex Breland of CDK Global in Chicago, IL; Pamela Devi Chandran of the Washington State Nurses Association in Seattle, WA; and Jackie Gessner of Barnes & Thornburg LLP in Indianapolis, IN. Carolyn Wheeler of Katz, Marshall, & Banks LLP in Washington, DC served as moderator. Their consensus was that, although vaccines have (thankfully) lowered Covid-19 infection and death rates, workplace challenges related to Covid have not gone away. They have only changed.
Here are three tips for employers to continue adapting to changing circumstances:
Remember that accommodations based on disability and accommodations based on religion have different frameworks.
For example, under the Americans with Disabilities Act, a reasonable accommodation must enable an employee to perform the “essential functions” of a job. Title VII of the Civil Rights Act, which governs accommodations for an employee’s religious beliefs or practices, does not take the essential functions of a job into account.
The statutes also have different definitions of “undue hardship” on an employer. For ADA purposes, “undue hardship” means “requiring significant difficulty or expense.” For Title VII purposes, “undue hardship” is only “more than a de minimis cost.” As a result, the employer burden under the ADA is heavier than it is under Title VII.
Be flexible.
Don’t be afraid to think big. Some accommodations need not be limited to the employees requesting them. Is implementing a hybrid model for all employees feasible? If not, what about for certain departments? A hybrid model reduces in-person contacts and therefore potential Covid transmissions. What about adjustable or staggered work schedules? Fewer people coming and going at the same time also reduces in-person contacts. Guaranteeing every employee will be protected from Covid while on the job is impossible. That said, take advantage of the opportunity to make work safer for everyone, not only those who proactively seek accommodations.
Rely on the experts.
On the micro level, an employee’s treating physician knows that person’s situation best. Use their documentation when engaging in the interactive process. On the macro level, the EEOC has guidance regarding both types of accommodations on its website. And of course, if you have legal questions, Husch Blackwell is always here to assist with your Labor & Employment needs.