By Kathryn M. Hindman
On April 17, 2020, the EEOC updated its COVID-19 Technical Assistance Questions and Answers in its “What You Should Know About COVID-19, the Rehabilitation Act and other EEO Laws" publication. Expanding on its March 17 and April 9, 2020 guidance, the EEOC provided additional answers to common pandemic reasonable accommodation questions, and added answers to new questions on return to work issues. This alert summarizes the new April 17, 2020 guidance from the EEOC, adding to our last alert
1. The interactive process during a pandemic:
The EEOC reminds us that even during a pandemic, employers may still ask questions and request medical information to determine if an employee has a “disability” that requires protection under the ADA (a physical or mental impairment that substantially limits a major life activity, or history of a substantially limiting impairment). If it is not obvious or already known, employers may continue to ask questions and request medical documentation to determine if an employee’s disability necessitates an accommodation, either the one requested or any other effective accommodation. Possible questions include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing essential functions (fundamental job duties) of the position. (Q&A D. 5, 6)
2. Temporary accommodations during a pandemic: If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request for accommodation during a pandemic, employers may choose to shorten or forego the interactive process and simply temporarily grant an accommodation. This is particularly so since government “stay home” restrictions change, may be partially or fully lifted, and the need for accommodations may change. In addition, employees with pre-existing disabilities that place them at greater risk during the pandemic, or who have disabilities exacerbated by the pandemic, may have an urgent need for an accommodation. Whatever the reason for shortening or adapting the interactive process, employers may choose to place an end date on a temporary accommodation (for example a specific date such as May 30,2020), or when the employee returns to work (due to changes in government restrictions limiting the number of people who may congregate). Employers may also opt to provide the requested accommodation on an interim or trial basis, with an end date, while waiting for receipt of medical documentation. (Q&A D.7)
3. Future accommodations: Employers may also ask employees if they will need reasonable accommodations in the future when the workplace reopens. Employers may begin that interactive process with a discussion on whether an impairment is currently a disability, will likely be disabling in the future, and the reasons that an accommodation is needed. Any actual accommodation, however, will be based on an employee's current need upon their return to work. (Q&A D.8)
4. Undue hardship: The EEOC also reminds us that there are circumstances where accommodations that would not have imposed undue hardship prior to the pandemic, may pose one now. Remember, an employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” Pandemic circumstances may create a significant difficulty in acquiring or providing certain accommodations that may not have posed an undue hardship before the pandemic. For example, it may be significantly more difficult to conduct a needs assessment or access certain accommodation items, and delivery may be impacted, particularly for employees who may be teleworking. In addition, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. Of course, if a particular accommodation poses an undue hardship, the EEOC reminds us that alternative accommodations should be reviewed that do not pose such problems. Types of undue hardship considerations relevant to determine if a requested accommodation poses “significant expense“ during the COVID-19 pandemic include a sudden loss of some or all of an employer‘s income stream, the amount of discretionary funds available at the time, and whether there is an expected date that current restrictions on an employer’s operations may be lifted. These considerations do not mean that an employer may reject any accommodation that costs money. Employers must weigh the cost of an accommodation against its current budget while taking into account constraints created by the pandemic. Even under current circumstances, the EEOC reminds us that there may be many no cost or very low cost accommodations. (Q&A D. 9-11)
Return to Work from a Pandemic
5. Screening employees: As government “stay home” orders and other restrictions are modified or lifted, employers may screen or continue to screen employees for COVID-19 when re-entering the workplace. The EEOC reminds us that the ADA allows employers to make disability-related inquiries and to conduct medical exams so long as they are job-related and consistent with business necessity. The guidance from the CDC or other public health authorities is objective medical evidence that allows employers the necessary information to exclude an employee with a medical condition that would pose a direct threat to health or safety. Accordingly, employers will be acting consistent with the ADA so long as any screening implemented is consistent with the advice from the CDC or any other public health authority for the type of work place at that time. For example, the CDC recently posted advice allowing employers to continue to take employee temperatures and to ask questions about COVID-19 symptoms.
6. Personal protective gear and accommodations: Employers may require returning workers to wear personal protective gear (e.g., masks and gloves) and observe infection control practices (e.g., regular handwashing and social distancing protocols). However, if an employee with a disability needs an accommodation for such gear under the ADA (e.g., non-latex gloves, modified facemasks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or religious accommodation under Title VII (such as modified equipment due to religious garb) employers should discuss the request and provide the modification or alternative if feasible, so long as it is not an undue hardship on the operation of the employers business under the ADA or Title VII.
As the EEOC continues to advise us on options for the workplace during this pandemic, we will continue to keep you informed.
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