When the COVID-19 pandemic hit with its associated risks, along with guidance from health officials, employers set policies for temporary work-from-home options and virtual meetings. As the COVID-19 pandemic eases and employers consider returning most employees back to a centralized workplace, reasonable accommodation considerations under the ADA may arise.
Who can receive a reasonable accommodation under the ADA?
The Americans with Disabilities Act requires employers to provide job applicants and employees with disabilities reasonable accommodations so that they can perform jobs and benefit from equal employment opportunities. Employees with disabilities have the right to request reasonable accommodations through modifications to the workplace, job tasks, or policies that allow them to do the job. An employer must provide an accommodation unless it would create undue hardship or burden on the organization.
How should the employer engage with the employee?
When a reasonable accommodation or even an adjustment to work duties or schedule is requested by a qualified employee with a disability, employers are required to use an interactive accommodation process by talking with the employee. Through communication, the employer and employee should identify which essential functions the employee cannot perform without accommodation and then share possible ways to accommodate the employee.
Typically, the discussion will include how the disability causes a limitation to a job function; in what way a requested accommodation could be effective to allow the employee to perform essential job functions; or what alternative strategies and accommodations might arise as options through conversation or other communication.
What if a qualified employee states that they are not comfortable with coming back to the office due to COVID-19 concerns?
A continuation of telework may be considered as an accommodation. Any request must be considered through an interactive process with the employee. If the discussion with employee indicates there are legitimate reasons related to disability to continue telework, the employer must consider them.
For example, an employee with diabetes feels that being in the high-risk group for COVID-19 makes it risky for her to commute to work and be near coworkers in the office. As a transportation scheduler, she is requesting that she continues to work from home until more people are vaccinated or positive rates of infection are lower. In this case, the employer must have a conversation with her to decide if a continuation of telework is possible while others return to the office. The consideration can include a review of essential job functions and the employee’s current effectiveness in performing the job while teleworking. Dates for review of the employee’s need to continue to telework should be established, as the extension of telework is viewed as a temporary accommodation. Another option would be for the employer to agree to work out a schedule where certain tasks may require the employee to come into the worksite on a limited basis or during hours when fewer employees are present.
Situation with a service dog
An employee who uses a guide dog to walk to a bus stop for work indicates to his employer that it is difficult to maintain social distancing when walking with his dog. He feels that continuing to work from home might be a prudent strategy for accommodating this issue.
An important consideration in this request is an understanding of how guide dogs’ work. Guide dogs are trained to work with their handlers to guide around obstacles and to track in the clear area of a sidewalk or path of travel. They are not trained to stay six feet from other people, and as a result, social distancing could be a challenge. Again, a conversation between the employer and the employee on the specific issues of social distancing and other factors while using a guide dog would be key for making an accommodation plan.
Is leave an accommodation?
Leave may be an accommodation. However, if a person requests leave for an indefinite period or until the COVID-19 pandemic is over, that accommodation request may be viewed as a hardship for the employer. The employer should talk over the leave request with the employee to discuss other options such as a reduced or flexible work schedule that could include some leave. Rather than deny the leave request outright, it is important to engage in conversation that could result in a solution that works for the employee and employer.
An employer asks for medical documentation of a chronic health condition when the employee asks for an extension of his work-from-home accommodation. An employer can request documentation; however, it is prudent to consider if the information is truly needed to make a decision on the request. In addition, the employer must consider any risks to the employee if he must visit a healthcare provider to get this information.
Situation for a mental health disability
An employee with a panic disorder asks for a private office at work when returning due to fears of getting COVID by interacting with coworkers. At first, the employer denies this request saying that people are vaccinated and safety precautions such as social distancing are in place. However, in further conversation with employee and getting a better idea about the underlying reasons for the request, the employer decides that a temporary use of a private office is possible with a review after four weeks. This is an example of a reasonable accommodation.
What if all employees are vaccinated?
An employer may assume that all vaccinated employees should and can return to work without need for further telework as an accommodation. If an employee with a disability and other health conditions requests additional days or weeks for telework, how should the employer respond?
As with any other request for reasonable accommodation, the employer should continue to engage in an interactive process by having an additional conversation as to why the telework is needed despite having been vaccinated. The employee may have additional health and disability-related concerns where telework may be appropriate. For instance, the employee may have a flare-up of a neurological condition that causes fatigue when walking and telework may be helpful. These issues would be decided on a case-by-case basis.
When an employee asks for a reasonable accommodation, employers are required to engage in a timely and interactive accommodation process. Essentially, the employer must talk with the employee and work together to identify any essential functions the employee cannot perform and discuss possible ways to accommodate.
Additionally, if an employee requests an accommodation for a disability that is not obvious, the employer may request medical documentation. During the pandemic, it may be difficult for employees to obtain medical documentation of a COVID-19-related disability from medical providers. Employers are encouraged to work with employees to grant the accommodation until the medical documentation can reasonably be obtained.
In a situation where an employee does not request a reasonable accommodation, the employer must offer to initiate an interactive process if a need for an accommodation is observed or seems prudent through conversation with supervisors.
The EEOC has not taken a position on whether or not COVID-19 could be considered a disability under the ADA. Consider the ADA’s definition of a disability as “a physical or mental impairment that substantially limits one or more major life activity” when reviewing any work accommodation requests related to COVID-19. Individuals may have conditions that would qualify as a disability as a result of having the virus.
Understanding and applying the ‘direct threat’ standard
If an employer is considering keeping the employee out of the workplace because they are part of the higher-risk group, the EEOC requires:
- Application of the “direct-threat standard.” Under this standard, an employee must pose a direct threat to themselves or to others to be excluded from the worksite. The EEOC defines direct threat in its guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
- An individualized assessment based on reasonable medical judgment about the employee’s disability — not the disability in general. The assessment should use the most current medical knowledge and the best available objective evidence.
Employers are encouraged to first work with the employee on creating reasonable accommodations within the workplace; however, if that is not possible, the employer should consider other accommodations such as telework, leave or reassignment.
What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
U.S. Equal Employment Opportunity Commission (EEOC). Retrieved from https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
CDC Guidance, People with Certain Medical Conditions: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html
Webinar Recording: Reasonable Accommodation: Best Practices for Return to Work During COVID-19
Linda Carter Batiste, J.D., Principal Consultant, Job Accommodation Network (JAN).
JAN is a service of the U.S. Department of Labor’s Office of Disability Employment Policy
The recording and handouts for the session can be found at https://www.adainfo.org/training/reasonable-accommodation-best-practices-return-work-during-covid-19-3-16-21 .
JAN Publications & Articles regarding Coronavirus Disease 2019 (COVID-19). Retrieved from https://askjan.org/topics/COVID-19.cfm
This blog was written by Ken Thompson, Technical Assistance Director for the National Aging & Disability Transportation Center and Easterseals.