As more businesses start to reopen, employers are faced with a number of questions about how they should handle a “high risk” employee, i.e., an employee with a disability that may make him or her more susceptible to severe illness from COVID-19.
The Americans with Disabilities Act (ADA) prohibits employers from discriminating against any “qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”1  Under the ADA, discrimination includes, “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.”2

What qualifies as a disability during the COVID-19 pandemic?

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a series of instructions, statements, and guidance to help employers navigate the impact COVID-19 in the workplace. The EEOC’s recent guidance broadens ADA protections to cover an individual with a pre-existing medical condition, even if such condition would not have qualified as a “disability” prior to the COVID-19 pandemic.

In its recently issued guidance, the EEOC confirmed that employees may request reasonable accommodations if the U.S. Centers for Disease Control and Prevention (CDC) deems them “higher risk” for severe illness from COVID-19. According to the U.S. Centers for Disease Control and Prevention (CDC), people aged 65 years and older and people of any age who have serious underlying medical conditions may be at higher risk for severe illness from COVID-19. Serious medical conditions include the following: chronic lung disease, asthma, heart conditions, immune deficiencies, cancer, HIV or AIDS, severe obesity, diabetes, kidney disease, and liver disease.

The interactive process

Under the ADA, as well as a number of state laws, an employer is required to engage in an interactive process whenever employee or applicant requests an accommodation for a disability, or when the employer becomes aware of a need for accommodation. The ADA makes it unlawful for an employer to fail to provide a reasonable accommodation, unless doing would create undue hardship. Moreover, if an employee requests assistance in identifying vacant positions, “even a request as generic as ‘I want to keep working for you—do you have any suggestions?’—then the employer has a duty under the ADA to ascertain whether he has some job that the employee might be able to fill.”3

The EEOC lists the following examples of questions that the employer might ask the employee;

  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 the “essential functions” of his or her position (that is, the fundamental job duties).
An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.”  If a particular accommodation poses an undue hardship, employers and employees must work together to determine whether there is an alternative accommodation that does not pose such problems. An employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by the pandemic.

Telework as a “reasonable accommodation”

The EEOC recommends flexibility by both employers and employees in determining if a particular accommodation is possible in the circumstances. Consideration should be given to any option that would permit an employee with a disability to perform the essential functions of his or her job while reducing exposure to unsafe conditions, including; temporary job restructuring of marginal job duties, temporary transfers to a different position, modifying a work schedule or shift assignment, or telework.

On September 8, 2020, the EEOC issued updated guidance clarifying employer responsibilities with regard to granting continued telework as an accommodation. The EEOC explained that any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer is not obligated to provide telework as an accommodation. Additionally, if there is a disability-related limitation that can be addressed effectively with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request to continue telework after the workplace reopens does not have to be granted if it requires continuing to excuse the employee from performing an essential function.

However, the EEOC cautioned that the determination as to whether a teleworking arrangement makes sense must be made on a case-by-case basis. According to EEOC guidance, an employee’s ability to satisfactorily perform all essential functions of his or her job while working remotely during the pandemic may be a factor considered in the ultimate decision as to whether such an arrangement is reasonable. Even prior to the COVID-19 pandemic, courts in most jurisdictions took into account past instances of telecommuting to determine whether an employee could be reasonably accommodated via working from home. In Henry v. Pro Act, LLC, an employer refused to permit an employee to work from home during his recovery from surgery. In determining that the employer could have made a reasonable accommodation available, the Court relied on the fact that the employer had previously allowed the employee to work from home after prior surgeries.5 In one of the few cases decided to date in the context of the COVID-19 pandemic, a Massachusetts court granted a preliminary injunction to prevent an employer from terminating an employee with asthma after she had requested permission to work remotely for the duration of the COVID-19 pandemic. The Court reasoned, “[t]here can be little dispute that Plaintiff requested to telework as a reasonable accommodation… Plaintiff is entitled to telework as a reasonable accommodation pursuant to the ADA and Chapter 151B”.6 The large-scale shift to telework during the COVID-19 pandemic could make it more difficult in the future for an employer to justify denying the request of a disabled employee to work from home on a permanent basis.

Conclusion

As new situations emerge with employees returning to work, the EEOC will continue to update its guidance with regard to reasonable accommodations under the ADA. Saluck, Halper and Lehrman offers counsel to employees navigating their return to the workplace, as well as business looking to ensure that their employment policies comply with the latest laws and regulations.

  1. 42 U.S.C. § 12112(a)
  2. Scalera v. Electrograph Sys., Inc., 848 F. Supp. 2d 352, 360 (E.D.N.Y. 2012)
  3. Fisher v. Nissan N. Am., Inc., No. 18-5847, at *10 (6th Cir. Feb. 27, 2020) (internal quotations omitted)
  4. Henry v. Pro Act, LLC, 2014 WL 12567144, at *8 (C.D. Cal. Dec. 30, 2014) (unpublished)
  5. Rezvan v. Philips Elecs. N. Am. Corp, 2016 WL 8193160, at *4 (N.D. Cal. Dec. 15, 2016)
  6. Peeples v. Clinical Support Options, Inc., No. 3:20-cv-30144-KAR, at *8, 13 (D. Mass. Sep. 16, 2020)