Everyone has had to adapt, pivot and take precautions in both their personal and professional lives due to COVID-19. When it comes to work, employers have learned how to boost organizational culture and employees have adjusted to working from home during this uncertain time.
While our world has changed, one aspect that's remained constant is employees requesting accommodations. Compliance with the Americans with Disabilities Act (ADA), especially during COVID-19, should always be top of mind for employers, otherwise they can face serious legal repercussions. Luckily, the Equal Employment Opportunity Commission (EEOC) provides guidance on important ADA considerations during COVID-19.
Check out our previous post, where we explored whether the fear of COVID-19 and COVID-19 itself are considered disabilities.
Working Remotely And Essential Functions
COVID-19 has added a new layer of complication when it comes to accommodations. One such issue is whether on-site presence is an “essential function” of a job. Since working remotely has become the new norm for most, telework may qualify as a reasonable accommodation in the context of the ADA.
This becomes tricky in situations where an employee with a disability requested telework as a reasonable accommodation prior to the pandemic but was refused (due to concerns that they wouldn’t be able to perform their essential functions remotely). Then, due to workplaces closing during the pandemic, the employee ended up temporarily working remotely anyway. What does an employer do after the pandemic has subsided, when temporary remote work ends and the employee renews their request for telework as a reasonable accommodation?
According to the EEOC, temporary telework during the pandemic could be pertinent for considering the renewed request. The period during which the employee worked remotely could serve as a trial period to see whether they could perform all essential functions of the job satisfactorily during this time. The employer should therefore consider this information accordingly. As with any accommodation request, the employer and employee should engage in a cooperative interactive process if this issue arises.
Accommodation To Protect A Vulnerable Family Member
When an employee is trying to avoid exposing a vulnerable (e.g. high-risk due to severe illness) family member from COVID-19, are they entitled to an accommodation under the ADA?
According to the EEOC, the simple answer is no. While discrimination based on association with an individual who has a disability is prohibited under the ADA, this protection is limited to harassments or disparate treatment. There isn’t a requirement under the ADA for employers to accommodate disability-related needs of an employee’s family member. The EEOC stated that, “an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.” However, employers can provide such accommodations if they wish (as long as they’re not engaging in disparate treatment).
Requesting Accommodations In Advance
An important consideration for employers is whether they can request that their employees ask now for any accommodations they may need once they can return to work.
The simple answer to this is yes. According to the EEOC’s guidance, employers may inform their employees with disabilities to request accommodations that they may require when workplaces reopen in advance. If employers receive advance requests, they may begin the interactive process (e.g. discussing with the employee whether their impairment is a qualifying disability and potential accommodations). Given that advance notice isn’t obligatory, if an employee chooses to put forth a request at a later date, the employer must still consider the request at that time.
While this time has been chaotic, we hope this guidance has eased any concerns regarding accommodations during COVID-19 and that, regardless of the circumstances, you remember to engage in the interactive process with your employees!