Friday, May 15, 2020

EEOC Issues Guidance on COVID-19 Reasonable Accommodations Under the ADA

One of the many issues that have arisen for employers during the COVID-19 era pertains to reasonable accommodations under the ADA specifically pertaining to COVID-19 issues. On May 7, 2020, the EEOC issued some additional guidance on this topic. Below is a summary of that guidance.
  • Reasonable accommodations for jobs that can only be performed in the workplace for those who are at greater risk due to preexisting conditions: The EEOC opines that there are low-cost solutions that will not result in undue hardship and that may effectively reduce risk to those at high risk during the pandemic. Such accommodations include but are not limited to designating one-way pathways in the workplace, using plexiglass to separate employees and customers, and the use of tables or other forms of barriers or partitions to separate co-workers and customers where possible. The EEOC also believes that temporary job restructuring, temporary transfers to no-contact positions, and modifying work schedules should be considered if an employee can still perform the essential function of his or her job (But see undue hardship discussion below). Employers should consider accommodation requests now-even if employees are currently teleworking. This will allow the employer more time to assess the request and obtain any necessary documentation regarding the disability prior to the employee’s actual return to the physical workspace;
  • Mental health issues: In addition to physical health risks of COVID-19, employers must also consider potential mental health issues exacerbated or brought on by the pandemic, including but not limited to stress and anxiety disorders, obsessive-compulsive disorders and post-traumatic stress disorders. Individuals who suffer from these conditions may have more difficulty handling their job duties due to the disruptions caused by the pandemic. Employers should speak with employees suffering from these conditions to determine if the condition is a qualifying disability and if so, whether a reasonable accommodation can be made that would allow the employee to perform the essential functions of his or her job. Employers can certainly request medical documentation if necessary as well as documentation regarding appropriate accommodations;
  • Employees receiving accommodations prior to the pandemic: Employees who received accommodations prior to the pandemic may be entitled to additional accommodations as a result of the pandemic in able to work at home or off-site. Employers should discuss these issues with employees to determine if such accommodations are warranted and can be made without undue hardship to the employer;
  • Information requests and the interactive process: During the pandemic, employers are still entitled to request medical documentation regarding whether a condition constitutes a disability under the ADA and what accommodations may be medically advisable. However, employers should be aware that there may be delays associated with obtaining this information due to physicians being overwhelmed with other pandemic-related issues. Additionally, employers should engage in the interactive process with employees requesting accommodation in order to assess the necessity and validity of the requested accommodation. The sooner employers being these processes the better in case there are delays in obtaining information;
  • Short term accommodations: Employers may make short-term or interim accommodations depending upon public health advice such as making arrangements to facilitate social distancing and protecting employees at higher risk due to preexisting conditions. In doing this, it is appropriate for employers to place tentative end dates on the accommodation(s) such as May 31 or a date compliant with state emergency orders. Making temporary accommodations with tentative, but set, start and end dates may be advisable if it becomes difficult to obtain medical information;
  • Undue hardships: During the pandemic, it is possible that what may have been a reasonable accommodation prior to the pandemic may now pose an undue hardship for an employer. For example, job restructuring and temporary assignments may not be feasible during the pandemic for a variety of reasons. Further, what may not have been financially unfeasible prior to the pandemic may now be due to a reduction of income streams and financial resources. These issues should be all be considered when assessing potential accommodations in the pandemic era.

It is clear that new challenges in the area of reasonable accommodation will arise during the COVID-19 pandemic. Please do not hesitate to contact us if you have specific COVID-19 related ADA questions.