As the spread of vaccines continues, employers prepare to welcome their workforce back to offices and workplaces across the country. While many Americans are anxious to return to pre-pandemic life, employers can expect resistance from employees being called back to the office, especially those whose medical condition puts them at greater risk for complications from COVID-19. This post reviews best practices under the Americans with Disabilities Act (ADA) and guidelines from the Equal Employment Opportunity Commission. This post provides tips for employers to have an effective interactive process with employees seeking disability accommodation for risks related to COVID-19.
According to the ADA, employers are required to provide reasonable accommodation for workers with disabilities, as long as this does not constitute an “unreasonable burden” on the employer (which is generally a high burden for employers). An integral part of this obligation is the requirement that employers conduct an interactive process with workers, and often their health care providers, to learn about the nature of the worker’s disability and assess what (if any) reasonable accommodation would allow the worker to be essential to perform functions of their role. Examples of reasonable accommodation include reorganizing the workplace, part-time or changed work schedules, acquiring or changing equipment (including assistive technology), and changing tests, training materials or guidelines.
When employers re-open the workplace, they should plan to participate in the interactive process for COVID-19-related accommodation. For example, employers who require vaccinations may have employees who are unable to do so because of a disability. In addition, employees who are at higher risk of developing complications from the coronavirus may need housing – including people 65 years of age or older, pregnant, and / or having an underlying medical condition (such as heart disease, asthma, and diabetes). Each of these situations depends on individual factors and requires a fact-intensive assessment. In anticipation of receiving such placement requests, employers should reconsider their placement process to ensure ADA compliance.
In anticipation of the surge in accommodation requests related to COVID-19, the EEOC released comprehensive guidance to help employers navigate the ADA in light of the unique challenges employers face during the pandemic. Below are some of the key points employers should keep in mind during the interactive process. You can find the full report here.
Employers can request information about why COVID-19 related housing is needed: Possible questions for the worker and / or their health care provider could be: (1) how the disability causes a restriction, (2) how the requested placement effectively addresses the restriction, (3) whether another form of placement could effectively address the restriction, and (4) how a proposed arrangement allows the employee to continue to perform the “essential functions” of their position (ie, basic professional duties). However, given the stress on the health system from the pandemic, employers should be pragmatic and flexible in requesting medical information – e. For example, consider approving the accommodation, indicating that formal documentation will be provided at a later date, accepting information from a previous doctor’s visit, or requesting permission from the representative to communicate directly with the healthcare provider.
For urgent requests, employers can provide temporary accommodation: As government restrictions change, or are partially or completely lifted, housing needs may change too. In addition to restricting the exchange of information between employer and employee during the interactive process, employers can also explore short-term accommodation, including specifying end dates for the accommodation. Employers can also provide desired accommodation temporarily or on a trial basis with an end date or a check-in date.
Employers who introduced teleworking during the pandemic do not have to automatically allow disabled workers to continue teleworking: Once the workplaces are reopened, employees may be required to apply for accommodation to continue teleworking. The employer can restore all essential duties of an employee (including work on the job) and then review all requests for continued or new housing in accordance with standard ADA rules. In the absence of a disability-related restriction that requires teleworking, the employer does not need to offer teleworking as a precaution. If the employer can effectively address the disability limitation through other reasonable accommodation at work, the employer can choose this alternative to teleworking.
With that in mind, here are the best practices employers should consider as they navigate the interactive ADA process:
Prepare comprehensive job descriptions for all positions, which explain all essential functions of the role in detail. These job descriptions are critical during the interactive process and should be made available to an employee’s medical service provider so that they can accurately assess whether reasonable accommodation will enable the employee to perform the essential functions of his or her job.
Have an open dialogue with the employee about the reasons why they believe that the accommodation they want will enable them to perform all the essential functions of their position (note that regular attendance is usually an essential function of a position!).
Make sure that this interactive dialogue is properly documented, including any changes to accommodations or follow-up meetings. Using template forms can be a way to standardize the process and ensure consistent documentation. For example, consider creating a questionnaire that can be used as a guide for conversations with employees looking for remote working accommodation.
Be aware that an employer need not provide an employee with the reasonable accommodation desired or preferred; an employer has a choice between effective accommodation. Likewise, an employer does not need to create a new position that is tailored to the skills or limitations of the employee.
Train executives and HR employees to recognize accommodation requests (employees often don’t make formal requests and don’t have to refer to the ADA by name!). Training and support for the people charged with participating in the interactive process, with employees.
Remember that when the workforce returns to the office, the employment landscape changes quickly. Last week’s CDC guidelines – removing the requirement to wear masks indoors for vaccinated individuals – illustrate the walking sands employers must traverse when reopening jobs. In addition to the best practices outlined above, be aware that these new CDC guidelines do not trump any local, state, or federal rules, regulations, or statutes, including the expected COVID-19 rules from the Labor Protection Agency.
© 2021 Foley & Lardner LLPNational Law Review, Volume XI, Number 137
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