COVID-19 and Reasonable Accommodations – EEOC Provides Updated Guidance
As employers across the country begin the process of reopening their businesses, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its guidanceFN1 for employers relating to providing reasonable accommodations as required under the Americans with Disabilities Act (“ADA”)FN2 while dealing with the COVID-19 pandemic.
The guidance specified that employees who need an accommodation due to an underlying medical condition identified by the Centers for Disease Control & Prevention as those that put a person at greater risk of contracting COVID-19FN3 must tell their employer (either directly or through a third party, such as their doctor) that they need an accommodation due to the underlying medical condition. Employees may request accommodation in conversation or in writing, and while employees do not need to use the term “reasonable accommodation” or reference the ADA, they may do so. After receiving the request, employers may ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship FN4, that can be provided. The EEOC noted that given time constraints caused by the pandemic, employers could decide to forgo the "interactive process" and simply grant accommodation requests. Employers can also choose to put end dates on accommodations, although they would have to consider employees’ requests for extensions.
The EEOC also provided examples of accommodations that, absent undue hardship to the employer, can limit the “direct threat” that an employee faces in the workplace, including:
Additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace;
Additional or enhanced protective measures, such as erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others;
Elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position); and
Temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).
The EEOC notes that these examples do not comprise a comprehensive list of the accommodations that can be provided and encouraged employers and employees "to be creative and flexible" with discussions of reasonable accommodation during this pandemic.
Takeaway
As employers begin reopening and retuning employees to work, they must ensure compliance with applicable laws. As the EEOC and other agencies continue to provide clarifications and guidance regarding the impact of COVID-19, please contact Campbell Litigation, P.C. for assistance with compliance in your workplace.
FN2 – The ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship. "In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." 29 C.F.R. § 1630.2(o).
FN3 – See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html
FN4 – The EEOC’s guidance recognized that accommodations that might not have posed an undue hardship for an employer before the COVID-19 pandemic could pose one now, and that the "sudden loss of some or all of an employer's income stream because of this pandemic” and the "amount of discretionary funds available" are relevant considerations when deciding if an accommodation is a "significant expense." See FN1.