What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

UPDATED December 12, 2020

The EEOC recently updated its guidance, What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws, including several FAQs on reasonable accommodation and harassment. 

Reasonable Accommodation 

There are 18 FAQs that deal with reasonable accommodation, but here are the main points an employer needs to know:

• Right now, everyone is thinking about remote work as the reasonable accommodation for employees with medical conditions that place them at high risk of complications from COVID-19. But, for jobs that must be performed onsite, there may be accommodations in the form of low-cost physical modifications, such as designating one-way aisles, using barriers such as Plexiglas, or objects such as tables to ensure minimum distances between employees and their customers and coworkers whenever feasible.  Employers may also consider temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment to permit an individual with a disability to safely perform the essential functions of the job while reducing exposure to others in the workplace or while commuting.
• Don’t forget about the normal reasonable accommodation steps, including engaging in the interactive process with anyone requesting an accommodation during this time, whether it be for a preexisting mental illness that has been exacerbated by the pandemic or any other disability. Ask questions to determine whether the condition is a disability, explore accommodation options, and request medical documentation if needed. Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position.
• If an employee previously had a reasonable accommodation, they may still be entitled to an additional or altered accommodation if the pandemic has changed the employee’s circumstances. For example, the employee may need a different accommodation in order to work from home than what was needed when working in the office.
• Employers may inform their workforce that employees may request accommodations in advance of a workplace re-opening that they believe they may need. However, employees may decline and elect to submit the request for reasonable accommodation later in time. The employer must still consider that later request.
• Employees are not entitled to an accommodation under the ADA in order to avoid exposing a high-risk family member to COVID-19, although employers are free to accommodate an employee request if they so choose as long as the employer does not engage in any discrimination on a protected EEO basis when doing so.
• Employers may need to allow temporary accommodations, if they are not fully equipped to engage in the normal interactive process due to COVID-19-related factors, such as the present inability to obtain appropriate medical documentation, or are otherwise experiencing reasonable delays in the interactive process due to a high volume of accommodation requests. Note that employees may request an extension that an employer must consider.
• Employers who granted telework for the purpose of slowing the spread of COVID-19 are not required to automatically provide telework for any employee who requests it upon the reopening of the workplace. For any request the employer receives, it should engage in the interactive process to determine whether the employee has a disability-related limitation that requires teleworking and if so, if the employer can effectively accommodate the limitation in another way besides telework. Just because the employer provided telework (which may have temporarily excused performance of one or more essential functions of the job) does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose undue hardship.
• Employers do not have to provide an accommodation if it poses undue hardship, which means “significant difficulty or expense.” What was reasonable prior to the pandemic, may pose an undue hardship now.
• It may be significantly more difficult to conduct a needs assessment or to acquire certain items, especially for employees who are teleworking. It also may be significantly more difficult to provide employees with temporary assignments or to remove marginal functions at this time. However, as noted above, providing temporary assignments or removing marginal functions may be reasonable accommodations.  This is an individualized inquiry and will depend on the particular employer’s circumstances.
• The sudden loss of some or all of the employer’s income stream, the amount of discretionary funds available, and whether there is an expected date for restrictions to be lifted on an employer’s operations are all considerations when deciding if a proposed accommodation would be significantly expensive. Overall, an employer must weigh the cost of the accommodation against its current budget.
• “Critical infrastructure workers” or “essential critical workers” are covered by the Americans with Disabilities Act and the Rehabilitation Act and are entitled to reasonable accommodation like any other employee.

Harassment Claims

Employers can reduce the chances of harassment claims by explicitly communicating to the company’s workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases. Employers may remind employees upon a return to work that is against the law to discriminate against or harass anyone on the basis of a protected characteristic. It might be particularly helpful to specifically remind managers and supervisors of their roles in preventing and reporting harassment and discrimination, as well as ensure that management understands in advance how to recognize such harassment. Such harassment may occur online in the form of email, text  video chat, or other electronic means and the employer should take the same actions in these cases as it would if the employee was in the workplace.

If you would like more information on any of these topics, please feel free to consult an attorney at Payne & Fears.