COVID has brought us many new experts. Most obviously there are now millions of epidemiologists in this country. There are a ton of HIPAA experts out there too. “Reasonable Accommodation” will come next as more employers impose vaccinations and other requirements that, like any other employment policy, are subject to reasonable accommodation under disability and religious discrimination laws.
I still don’t pretend I know anything about epidemiology (I had to look it up to spell it), and I just know a little bit about HIPAA (including the spelling … apparently not a requirement to claim expertise). But I know something about reasonable accommodation, and I think in our somewhat troubled world it is important for companies to solidify (or re-ground) on some of the fundamentals as it becomes a hotter topic.
- Adequate requirements for accommodation are nothing new. The federal law on Americans with Disabilities was passed in 1990, and employers have been wrestling with reasonable accommodation under the law ever since. The right to a certain adaptation to religious beliefs diminishes as it emerges from Title VII of the Civil Rights Act of 1964. To make it easier, an employer is required to make reasonable changes to its policies and practices to A) enable an employee with a disability to do the job, or B) incorporate religious practices.
- Placement obligations are not a blank check for employees. Rather, the employer simply has to be sensible. This is both good and bad news. The bad news is that “reasonable” is not a measurable definition. Therefore, there is some uncertainty for employers and employees alike in determining what is appropriate. What is reasonable accommodation for one employer / employee situation need not apply to another, as each analysis is unique to the situation at hand. The good news is we should all be sensible, right?
- Employers do more when accommodating disabilities than when accommodating religious beliefs, for two reasons. First, most employers simply receive far fewer requests for religious accommodation. Second, the scope of the employer’s obligation to honor religious beliefs is less than its obligation under the ADA. According to the US Equal Employment Opportunity Commission, anything but a “minimal burden” on the employer’s operations is an “unreasonable hardship” that would likely undermine a placement obligation.
- Workers do not need to use the words “reasonable accommodation” to trigger potential employer’s placement obligations. At the ADA there is an obligation to take a “known” disability into account. Getting too sweet about what you “know” is unlikely to do the employer any good. If you are wondering whether your observations or what you hear may be an obligation to accommodate you, it is usually advisable to pick up the phone and ask your labor lawyer for at least some preliminary guidance.
- Once you have an accommodation request, it is important that you go through some level of process in order to consider it. The ADA speaks of an “interactive process”. When reasonable accommodation is brought in court, courts will judge not only the ultimate outcome in terms of the granting of accommodation, but also the employer’s efforts to seriously and creatively examine and ponder an application. Although the application is not a blank check, it is important that the employer take the application seriously.
- If an employer has a placement requirement, there may be more than one acceptable placement that would meet the requirement. Employees don’t just get the accommodation they want, if they get one at all. A good example of our current environment: Employer A requires COVID vaccinations. If any of these laws make reasonable provision not to require a worker to be vaccinated (not given, but assumed for this particular example), the worker may want to work remotely rather than get vaccinated. The employer may have good business reasons not to allow remote working (although this will be a more difficult selling point in some companies after a year plus productive and profitable remote working) but accommodate the employee by requiring masking in the office.
- Employers can set a precedent with any placement decision. As mentioned earlier, every property analysis is different – different work environments and job requirements and employees can provide different answers. But if an employer allows worker A to work remotely, it can become more difficult to later deny worker B the same placement in the same department as worker A. Of course, there may be differences between the situations of the two workers who would support different treatment but understand that the precautions you have put in place can be used against you later. So while we all want to be flexible employers and enable teammates to succeed, in the longer term it can be beneficial not to be overly courteous.
- Employers are entitled to certain information that will help them assess an apartment application. These are situations where consulting a lawyer is likely to be advisable, as handling such requests is an art and an employer is not entitled to unlimited information about a worker’s medical situation or religious beliefs, but employers should know they can receive reasonable amounts from information to a request for help in assessing the situation. Again, it’s not a blank check.
We’ll hear a lot more about reasonable accommodation in the coming weeks and months (and then years as some of the vaccination adjustment disputes go to court). Employers have obligations to do so, but know that this is an old requirement that applies to new circumstances, and you have rights when these requests come to you.
This article should not be construed as providing legal advice or opinion on any particular fact or circumstance. The content is for general informational purposes only and you are urged to consult your own lawyer with any specific legal questions pertaining to your situation.
Barnes & Thornburg LLP is a large, full service law firm seeking a more entrepreneurial and cost effective approach to both customer care and their own business. Read more about Metropreneurial Legal Insights.
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Bill Nolan has practiced law in Columbus since 1989. In 2009, he opened the Columbus office of Barnes & Thornburg LLP, a large, full-service law firm that aims to take a more entrepreneurial and cost-effective approach to both customer care and its own business. Barnes & Thornburg attorneys will provide this column monthly.