Lewis Roca Blog

On April 17, 2020, the Equal Employment Opportunity Commission published additional guidance for employers regarding the issues they are facing due to the COVID-19 pandemic. The latest advice focuses on the reasonable accommodation requirement of the Americans with Disabilities Act (the “ADA”).

How Should Employers Handle Reasonable Accommodation Requests During the Pandemic?

Employers are still required to provide reasonable accommodations to their employees, so long as they do not pose an undue hardship on the employer, meaning the reasonable accommodation does not pose a significant difficulty or expense to the employer. Reasonable accommodations that are specific to COVID-19 must be treated like all other reasonable accommodation requests.

When an employer receives a reasonable accommodation request, the employer may still ask questions or seek medical documentation to determine whether the employee has a disability as defined by the ADA. Possible inquiries include: (1) how the employee’s disability creates a limitation; (2) how the requested accommodation will assist the employee in dealing with the limitation; (3) whether a different accommodation could achieve the same goal; and (4) how the requested accommodation will enable the employee to continue performing his or her essential functions.

The urgency and unknowns caused by the pandemic mean that completing a thorough investigation prior to providing a reasonable accommodation may not be possible. The need for reasonable accommodations may also vary as the government’s restrictions change. Employers may provide temporary accommodations to address these challenges. The temporary accommodations may have an end date, such as a specific date or a triggering event (i.e., when the employee returns to the workplace). The employer may also provide the reasonable accommodation immediately, while awaiting the relevant medical documentation. Employers should be flexible and recognize that reasonable accommodations with a time limit may need to be extended.

Employers should also be proactive and think about the reasonable accommodations that may be requested when employees return to the workplace, given that the work environment will likely be different from before the pandemic. Employers can ask their employees now for any reasonable accommodations that they anticipate needing in the future, and work to address those requests preemptively.

Changes to an employer’s financial situation may render certain accommodation requests unreasonable in the current environment. Employers are not required to provide reasonable accommodations that pose either a significant difficulty or a significant expense. What constitutes a significant difficulty or expense now may not have qualified before the pandemic. When a requested accommodation poses an undue hardship on the employer, the employer should work with the employee to determine if an alternative accommodation would be feasible and effective.

Employers should remind all employees that harassment and discrimination remain illegal, and encourage supervisors and managers to take an active role looking for, stopping, and reporting harassment and discrimination based on race, national origin, color, sex, religion, age (over 40), disability, or genetic information.

What Should Employers Do When Employees Can Return to Work?

Employers may make disability-related inquiries and conduct medical examinations, so long as doing so is related to the employee’s job and consistent with medical necessity. This standard is met where employees must be excluded if they have a medical condition that would pose a direct risk to health or safety, which includes COVID-19. Employers should abide by the CDC and public health authorities’ advice regarding return-to-work screening procedures. When implementing screening and potential exclusion of employees from the workplace, employers must be careful not to engage in discriminatory conduct based on employees’ protected characteristics.

Employers should also provide modified or alternative personal protective gear and equipment when requested, so long as doing so does not impose an undue hardship on the employer. This may include non-latex gloves, modified face masks for interpreters, gowns designed for individuals in wheelchairs, or modified equipment for religious garb.

The updated EEOC guidance can be found here.

For more information, contact the Labor & Employment attorneys at Lewis Roca.