This resource is provided by WLJ Labor & Employment Team attorneys Daveante Jones and Jane Kim.
One looming and critical compliance issue regarding protecting employees post-return is complying with the Americans with Disabilities Act (ADA) and the need to possibly accommodate those with underlying conditions/disabilities. The Centers for Disease Control (CDC) has stated that individuals with medical conditions, including chronic kidney disease, serious heart conditions (e.g., heart failure, coronary artery disease, cardiomyopathies), Type 2 diabetes, severe obesity, diabetes, sickle cell disease and immunocompromised state (weakened immune system) from solid organ transplant—if not well controlled—are at a higher risk for severe illness from COVID-19. It has also stated that individuals with medical conditions such as asthma (moderate-to-severe), cerebrovascular disease, cystic fibrosis, hypertension or high blood pressure, HIV, neurological conditions (such as dementia), liver disease, pregnancy, pulmonary fibrosis, thalassemia or Type 1 diabetes might be at an increased risk of severe illness from COVID-19. Requests related to modifying or adjusting the workplace from employees with these conditions will more than likely be considered requests for a reasonable accommodation under the ADA.
The Interactive Process
The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance to assist employers in dealing with the interplay between COVID-19 and the ADA. For instance, the EEOC says that the ADA permits employers “to make information available in advance to all employees about who to contact – if they wish – to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return.” This would start the interactive process to determine if a reasonable accommodation exists that would allow the employee to perform his or her essential job functions absent undue hardship. Therefore, the EEOC suggests two types of notice employers can provide:
- A notice that lists all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, instructions about who to contact if the employee has one of these conditions, and explains that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions; or
- A general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis.
No matter the type of notice distributed, “employers should specify if the contacts differ depending on the reason for the request—for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.” Employers should keep in mind, however, that the ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom that employee is associated.
When going through the interactive process, the EEOC suggests employers ask questions that address (1) how the requested accommodation will effectively address the limitation that the disability places on the employee’s ability to perform his or her essential job functions, (2) whether another form of accommodation could effectively address the issue, and (3) how a proposed accommodation would enable the employee to continue performing the position’s essential functions.
Some of the more obvious accommodations that allow an employee to avoid coming to the workplace are telework or leave (paid or unpaid). But creative solutions may be available that enable disabled employees to be in the workplace. For instance, some employees may request an alternative method of screening due to a medical condition. This is a request for a reasonable accommodation according to the EEOC. If easy and inexpensive, an employer may make an alternative method available to anyone who asks, without going through the interactive process. On the other hand, if the employee’s disability is not obvious or already known, employers can ask the employee for more information related to the alleged disability or request medical documentation to help determine if an accommodation or an alternative effective accommodation can be provided, absent due hardship.
The EEOC also suggests some low-cost in-the-workplace solutions. The suggestions include enhanced protective gowns, masks and gloves, or changes to the work environment such as “designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance.” Employers can also move an employee’s work location to a more isolated area or temporarily modify work schedules that decrease contact with coworkers and/or the public when on duty or commuting.
Avoiding Failure to Accommodate/Discrimination Claims
Addressing compliance issues related to the ADA, the EEOC warns that the ADA does not allow an employer to exclude an “employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at ‘higher risk for severe illness’ if he gets COVID-19.” Only when the employer has determined that the employee’s disability poses a “direct threat” that cannot be eliminated or reduced by reasonable accommodation can an employer take such an action. To do this, an employer has to conduct an individual assessment of the employee’s ability to perform the essential functions of the job safely, relying upon current medical knowledge (not stereotypes) to make the assessment. An employer has to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur and the imminence of the potential harm. Information from the employee’s physician is typically necessary to make this assessment.
The EEOC also notes that employers should also keep in mind employees with certain preexisting mental health conditions, such as anxiety disorder, obsessive-compulsive disorder or post-traumatic stress disorder “may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.”
Finally, as the EEOC states, “ensure that whoever receives [accommodation] inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.”
Employers should make sure to treat employees’ health or personnel information (temperature logs, doctor’s notes, leave requests, etc.) as confidential medical records.
In conclusion, however employers decide to handle ADA issues and accommodation requests, make sure to document everything, handle each employee’s accommodation request on a case-by-case basis, and consult reliable resources for guidance on the ADA and reasonable accommodations.