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 Dec. 30, 2014) (unpublished)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