New: EEOC Updates COVID-19 Guidance

During the pandemic, an employee requests an accommodation for a medical condition either at home or on the employer’s premises, may I still request information to determine if the condition is a disability?

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has an ADA disability.

May an employer, during the pandemic, still engage in the interactive process and request information from an employee about why an accommodation is needed?

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee needs an accommodation. Such questions may include: (1) how does the disability create a limitation; (2) how will the requested accommodation effectively address the limitation; (3) are there other accommodations that could effectively address the issue; and (4) how will the proposed accommodation enable the employee to continue performing his or her job’s essential functions.

If an accommodation is urgently needed, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation?

Yes, again. Due to the pandemic, some employers may choose to forego or shorten the interactive process and grant the employee’s accommodation request. Also, as government restrictions change, or are relaxed or lifted, the need for accommodations may also change. The result may be more requests for short-term accommodations. Employers may wish to adapt the interactive process — and devise end dates for the accommodation — to suit changing circumstances based on public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30 or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting the employee’s medical documentation. Choosing one of these alternatives, according to the EEOC, may be particularly helpful if the requested accommodation would provide protection that an employee needs due to a pre-existing disability that puts the employee at greater risk during the pandemic and to employees whose disabilities the pandemic has exacerbated.

Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.

May an employer ask employees now if they will need reasonable accommodations in the future when they return to the workplace?

Yes, says the EEOC. Employers may begin the interactive process before the employee actually needs an accommodation.

Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship?

Yes. The EEOC says that an employer does not have to provide a particular reasonable accommodation if it poses an undue hardship, such as an unreasonable expense. In some instances, an accommodation that would not have posed an undue hardship before the pandemic may pose one now.

What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” during the COVID-19 pandemic?

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. Here’s an example: It may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking. Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions. The EEOC says that if a particular accommodation poses an undue hardship, employers and employees should work together to determine if there is a less problematic alternative.

What types of undue hardship considerations may be relevant to determine if a requested accommodation poses a “significant expense” during the COVID-19 pandemic?

In the EEOC’s view, before the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources. But, the pandemic-related income loss that many employers have suffered is a relevant consideration. Also relevant is the amount of discretionary funds available to the employer — when considering other expenses — and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted). These considerations do not mean that an employer may reject accommodations just because they cost money. Rather, according to the EEOC, an employer must weigh an accommodation’s cost against the employer’s current budget, taking into account constraints that the pandemic has created. For example, even under current circumstances, the EEO says, there may be many no-cost or very low-cost accommodations.

Are there steps that an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace?

Yes, says the EEOC. An employer may remind employees that it is unlawful to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information. According to the EEOC, it may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination. An employer may also make clear that it will immediately review harassment and discrimination claims and take appropriate action.

As government stay-at-home orders and other restrictions are modified or lifted, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace?

The ADA permits employers to make disability-related inquiries and conduct medical exams if they are job-related and consistent with business necessity. The EEOC explains that inquiries and reliable medical exams meet this standard if they are necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, according to the EEOC, employers will be acting consistently with the ADA if their screening protocols are consistent with CDC and public health authority advice for that type of workplace at that time.

For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on return to work by healthcare personnel.

Employers, of course, should not, during any screenings or exclusions, treat employees differently based on protected characteristics.

An employer requires returning workers to wear personal protective gear and engage in infection control practices. Some employees ask for accommodations due to a need for modified protective gear. Must an employer grant these requests?

An employer may require employees to wear protective gear, such as masks and gloves, and observe infection control practices, such as regular hand washing and social distancing protocols.

However, if an employee with a disability needs a related reasonable accommodation under the ADA, such as non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs, or a religious accommodation under Title VII, such as modified equipment due to religious garb, the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship for the employer.