“If you fail to prepare, you’re prepared to fail.” – Olympian Mark Spitz
It’s time for employers to get their game plans ready on how to safely return to work. This article focuses on employers with 15+ employees requirement to provide reasonable accommodations under the ADA related to COVID-19 issues.
Are Reasonable Accommodations Necessary for COVID-19?
When an employee seeks a reasonable accommodation, it invokes employers to conduct the ADA’s “interactive process” with the employee to assess if the employer will suffer an “undue hardship”.
COVID-19 has disrupted work routines and increased requests for reasonable accommodations. Due to the extraordinary circumstances of the COVID-19 pandemic. Employers may be unable to immediately address all requests without delay. Employers ad employees are encouraged to use interim solutions to enable employees to keep working as much as possible.
Here are a few examples.
A sales clerk with a pre-existing disability can request a reasonable accommodation (to protect himself) if his work can only be performed at the drug store, because his disability places him at a higher risk for COVID-19. The drugstore can probably accommodate the request without undue hardship by:
- adjusting his work schedule or different shift assignment;
- designating one-way aisles to the counter, using plexiglass, tables, or other barriers to ensure minimum distances; and/or
- restructuring the job duties temporarily or transferring him to a different position
Employees with Prior Accommodations
An employee who was receiving a reasonable accommodation prior to the COVID-19 pandemic may still be entitled to an additional or altered accommodation. For example, an employee who has back issues and uses a special chair at work may ask for the same type of chair teleworking from home.
Employees with pre-existing mental health conditions such as anxiety disorder, obsessive-compulsive disorder, or post traumatic stress disorder may have more difficulties handling the disruption of daily life due to the COVID-19 and can request a reasonable accommodation.
What Can Employers Ask During the ADA’s Interactive Process?
Even during a pandemic, employers can still ask questions or request medical documentation to support the accommodation request if the ‘disability’ is not obvious to the employer. Employers can ask the following questions during the interactive process:
- how the disability creates a limitation;
- how the requested accommodation will effectively address the limitation;
- whether another form of accommodation could effectively address the issue; and
- how a proposed accommodation will enable the employee to continue to perform the ‘essential functions’ of his position
Given the pandemic, an employer may chose to forgo or shorten the interactive process and grant the request. When government restrictions are lifted, the accommodation may no longer be necessary. An employer may devise an end date for an accommodation based upon public health directives.
SLG is staying tuned to EEOC and U.S. Department of Labor for new regulations to address employment issues in the days to come.