BY AMY COOLEY
Regular readers of this column may remember this 2018 article regarding reasonable accommodations and the ADA, which summarized the issue as follows:
The ADA was created to protect individuals who have a disability but who can do the same work as a person without a disability, with or without a reasonable accommodation. Employers covered under the ADA are required to provide reasonable accommodations that do not impose an undue hardship on the company, and it is up to the applicant/employee to inform the employer of the disability. This Act does not say that employers are forced to hire a person whose disability keeps them from performing the job (for example, a person whose disability prevents them from getting a driver’s license can be disqualified from being hired for a chauffeur position). This Act does, however, stipulate that people whose disabilities require them to be in a wheelchair cannot be disqualified from a position that requires someone to sit at a desk and work on a computer.
As in so very many aspects of our business operations, COVID-19 has generated a new set of questions related to this EEOC topic. With more information emerging every week, sometimes contradicting previous guidance, keeping up can be a lot of work. Here, we’ve added an update to review some of the most frequently asked questions regarding reasonable accommodations in consideration of this pandemic:
In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website (askjan.org), which offers ADA compliance assistance. JAN’s materials specific to COVID are here.
1. What if the job cannot be performed remotely? Are there still reasonable accommodations that could protect an employee who is at higher risk due to a disability?
With some flexibility on both sides, the answer is likely yes. The need here is to eliminate as much as possible the risk of exposure to the virus (e.g., one-way paths in the office, plexiglass dividers in work areas and vehicles). If these measures are not enough, or are unavailable, other accommodations might include a temporary modification of work assignment or schedule that would allow the employee to work safely.
2. What if my employee has a preexisting mental health issue that has been made worse by the pandemic? Are they now entitled to request accommodations for their mental health condition?
It is important to be aware that many people feel a significant level of stress due to the pandemic, and all of its effects. People with certain mental health diagnoses like anxiety or PTSD may experience an increase in symptoms and have more difficulty handling the current situation.
Resulting accommodation requests should be treated like any other; you are allowed to ask questions to determine if the condition is a disability, talk with the employee about how the accommodation would help them to keep working, discuss potential alternatives, and request medical documentation.
3. Can I still ask the employee for information about why they need an accommodation?
Yes, you can still ask questions to determine if a disability exists and how it creates a limitation (unless it is obvious/observable). You can also ask how the accommodation would help, and whether another type of accommodation might be effective. You may also ask direct questions about how the accommodation relates to their essential job duties.
4. Can I provide an accommodation just temporarily?
Yes, you can put an end date on an accommodation, either a specific date, or based on when certain circumstances change. You may also provide one on a trial basis pending medical documentation. In either case, the employee is allowed to request an extension that you are required to consider (especially if it relates to updated government guidance).
5. Are circumstances related to the pandemic considered when making a case for undue hardship?
Yes, essentially undue hardship is defined as “significant difficulty or expense.” In some cases, an accommodation might create undue hardship because of business circumstances during the pandemic. For example, the pandemic might make it significantly difficult to get certain items or to offer temporary re-assignments. Aside from that, some accommodations may cause a much more significant expense during the pandemic due to reduced revenue. When this is an issue, you should still discuss potential alternatives with the employee to see if you can find a solution that will work for everyone.
6. Do I have to provide accommodation to an employee who requests it due to a family member being at higher risk of severe illness from COVID?
No, the ADA does not obligate you to provide accommodations for an employee who does not have a disability, even if it is based on the needs of a family member with a disability.
Of course, just because you are not required to provide accommodation, does not mean you are not allowed to. Just be sure that you are treating all of your employees fairly, and not engaging in “disparate treatment” based on a protected status.
As we have pointed out previously, you ARE obligated to provide a safe work environment for your employees, so taking government-mandated precautions is a must. Following CDC guidance is highly recommended. [CD0921]
Amy Cooley is HR Administrator for The LMC Groups. She can be reached at amy@lmcpeople.com.