COVID has challenged businesses in so many ways—some obvious and some unexpected. One thing business owners and managers now need to keep in mind more than they did pre-pandemic is the ADA. Staying ADA compliant in a COVID world has gotten a little more complicated because the law is being used to protect people as they request accommodations for risk of COVID exposure, adjust to wearing PPE in the workplace, and more. The FAQ below, compiled by our HR services team at MP from a few government websites, will help you understand ADA employer requirements in the pandemic and how you can avoid ADA discrimination.
Q: What if an employee hasn’t requested an accommodation under the ADA, but the employer knows the staff member has a disability?
A: Don’t make any assumptions about your employee’s needs because you might be in danger of discrimination. Don’t exclude employees from plans like returning to the workplace, or take any kind of action that might set the employee apart from their coworkers, unless they request an accommodation. You can only proactively make a special accommodation for a worker if their disability poses a ‘direct threat’ to their health that cannot be eliminated or reduced by a reasonable accommodation. Wait for your employee to come to you and make a request for an accommodation, then engage in the interactive process with them.
Q: If an employee has a pre-existing mental illness or disorder that COVID has exacerbated, are they entitled to a reasonable accommodation under the ADA?
A: Yes. However, because this pandemic is stressful for everyone, there may be potential for an employee to ask for something they’re not entitled to. Just because somebody feels stress due to the pandemic does not mean they have a disability as defined by the ADA. Experiencing a great deal of stress is not the same as an anxiety disorder that hinders major daily living activities. In a case like this, you can gently ask for disability-related documentation. This will help the employee realize that they may not be entitled to what they’re requesting.
Q: Are there best practices for inviting employees to request an accommodation?
A: Yes. If you do this, you should put your invitation out to all your employees. Make it clear that you’re willing to engage in the interactive process with any employee that may need an accommodation due to a disability.
Q: Do employers have to provide reasonable accommodations under the ADA because of the pandemic?
A: Yes. There will be many new situations that come up because of the pandemic. Employees with disabilities who didn’t need a reasonable accommodation before may need one now to perform their job. For example, an employee with cardiovascular disease who works in a highly populated, open workspace may request to work at home during the pandemic because now they’re dealing with risk of exposure to the COVID-19 virus. This request for an accommodation would be considered a request for an accommodation under the ADA (due to their cardiovascular disease), and the employer should engage in the interactive process with the employee.
Q: Who can receive reasonable accommodations under the ADA?
A: To be eligible, an individual must have a disability, or a record of disability as defined by the ADA. There must also be some connection between the impairment and the specific need for the accommodation. Coronavirus itself is not considered a disability under the ADA because it’s generally a transitory illness that doesn’t have a significant impact on major life activities. Even though people over the age of 65, people who have diabetes, and women who are pregnant are considered at higher risk for developing complications from COVID, they still will not qualify for an accommodation under the ADA simply for those reasons. It’s also important to note that caregivers of individuals with disabilities are not entitled to receive reasonable accommodations under the ADA. However, they may be entitled to leave under the FMLA or the FFCRA. For example, if a caregiver’s child has COVID-19, it’s possible that the FMLA could be applicable if they needed to care for that family member. The ADA, though, would not be applicable.
Q: What if wearing a mask exacerbates my anxiety disorder?
A: Wearing a mask is important right now to help prevent the spread of COVID-19, but you will also need to work with your employee if they have a qualified disability, like an anxiety disorder. As an employer, you’re obligated to engage in that interactive process and explore accommodation options for a mental health disability, just as you would for a physical disability or medical condition. There are a few accommodations MP’s HR Services team can recommend. One solution is offering an employee a face shield, which might feel less restrictive (and thus less triggering). Another potential accommodation could be allowing some flexible breaks for the employee. They could step outside, take their mask off, and get some fresh air. Lastly, employers can also consider allowing the employee to work remotely (if their job responsibilities allow for it) or temporarily transferring to a different role that could be performed remotely. These are just a few suggestions, and accommodation solutions should be considered on a case by case basis.
If an employee asks for an accommodation that would pose an undue hardship to your business, you are not obligated to provide that particular accommodation. During the interactive process, you just need to come up with accommodations that work for both parties.
Q: Should an employer require disability–related documentation when an employee requests an accommodation (under the ADA) to reduce the risk of exposure to the Coronavirus?
A: Yes. Pre-pandemic, an employer could ask for documentation to establish the employee’s right to receive an accommodation when the disability wasn’t obvious or the need for accommodation wasn’t known or obvious. However, things have changed since the COVID crisis. Doctors are busier now and less available to provide timely documentation. If an employee needs to go into the doctor’s office for documentation, you may be subjecting them to extra potential risk for exposure to COVID, not to mention the stress of a last-minute doctor’s appointment and taking the time out of the day to do it.
There’s no legal requirement for employers to receive disability-related documentation before engaging in the interactive process or granting an accommodation request. Unless you are trying to figure out if the employee really does qualify for an accommodation, this may be a good time not to ask for it.
Q: If a job can only be performed at the workplace, are there reasonable accommodations that could offer protection to an employee who, due to a preexisting disability, is at higher risk for COVID-19?
A: Yes, there are a few other accommodations you could offer to an employee when remote work isn’t possible. In a retail business, you can make changes to the physical environment, including one-way aisles or temporarily closing aisles where an employee is working. You can also use PPE plexiglass tables or other barriers to ensure that a safe distance is maintained between customers and staff. Beyond changing the physical work environment, you can also consider temporary job restructuring of non-essential job duties. Lastly, you can try to modify work schedules or shift assignments to reduce employees’ exposure to others. For instance, an employee who is more at risk could be allowed to work the slower shifts in early morning or the late evening.
Q: Is an employee entitled to an accommodation under the ADA if they’re concerned about exposing a family member who, due to an underlying medical condition, is at higher risk of severe illness from COVID?
A: No. The ADA prohibits discrimination based on association with an individual with a disability. However, that protection is just limited to any type of disparate treatment or harassment. The ADA does not require an employer to accommodate an employee without a disability based on the disability-related needs of a family member. For example, an employee who requests a telework arrangement because they live with somebody who is over 65 is not (under the ADA) entitled to this accommodation.
This doesn’t mean you can’t or shouldn’t provide that kind of flexibility to your employees if you want to. In fact, supporting your employees is probably more important now than ever. If you do give this kind support to employees, though, you want to be aware of the optics of that situation. You don’t want other employees or managers to feel that you’re extending flexibility to some employees, but not others in a way that could be perceived as discriminatory.
Q: When considering whether an accommodation will be an undue hardship on a business, can an employer take into account the way the pandemic has affected the business?
A: Yes, the circumstances of the pandemic are relevant. Before the pandemic, a business in good financial standing would have a difficult time proving that an accommodation would cause an undue hardship against the overall budget and resources. Remember that when you’re considering the budget and resources of a business, you must look at the entire entity, not just certain components. So, a franchise owner with multiple locations will need to evaluate the overall financial snapshot, not just a location where the employee requesting the accommodation works. Businesses must also consider the amount of discretionary funds available, whether there’s an expected date that current restrictions on operations will be lifted, or new restrictions are added in or substituted. These are all considerations when looking at the big picture.
Now that many businesses have experienced a pretty sudden loss of some (or all) of their income stream due to the pandemic, their overall financial snapshot will look much different and may potentially present what would be considered an undue hardship. This doesn’t mean that an employer can just reject an accommodation that costs money. You still need to weigh the cost of the accommodation against your current budget and consider any constraints created by this pandemic. Even under current circumstances, there may be many low-cost accommodations that you could offer an employee. For instance, maybe you can’t add in an elevator for an employee who has trouble walking, but you might be able to add in a ramp that doesn’t cost much.
Q: What would you do if somebody in a public-facing role, like a receptionist, requested an accommodation under the ADA for remote work. The company does not want this position to be remote. Is it okay to deny the request?
A: The important thing to remember in this case is that an employer is obligated to engage in the interactive process. This means that as the employer, you can’t flat out deny it. Ideally, you’d sit down with the employee in the receptionist role and try to come up with some other solutions that would allow them to do the job. Focus on why this person is requesting remote work. In the MP office, for example, we’re not working in the office due to the pandemic. However, we do have two people who have been working there since the beginning to keep our physical operation going. They are safely isolated from all visitors and nobody comes on-site for meetings. This protects them from extra COVID exposure risk, but allows them to do their jobs. Another possible accommodation is to split up duties. The receptionist can do some at the office, then do tasks that can be completed remotely from home. In the end, it’s not about giving the employee all the accommodations they want; just the accommodation(s) that work.
Q: An employee who was allowed to work remotely full-time for several months is now causing challenges and the employer wants to bring them back into the office only on a part–time basis. What can be done if the employee says no?
A: This is where an employer needs to be careful about potentially provoking claims of retaliation. When somebody exercises their rights under the ADA by requesting an accommodation, the employer cannot act in response that could be perceived as retaliation. In this case, that would be bringing the employee back part-time, when they previously worked full-time. If your office is opened again or your business is open, and you do need people physically there, then you can tell them that they must physically be there.
It’s worth stopping and thinking about the fact that your employees were able to do their jobs remotely for several months. If they could, why is it that you feel like you need the employee to come into the office? Many people are concerned that if they cannot see an employee working, they can’t be sure they’re working productively. This pandemic has certainly proven for many companies that this assumption isn’t true. If your employee does need to be in the office, try returning to that interactive process. Maybe you can split their work so some can done remotely and some at the office. Or perhaps you can seat them away from everyone else to avoid risk of COVID exposure. Working together to find an accommodation will be the key to resolving this problem.
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