Preexisting Disabilities, Remote Work, the ADA, and COVID-19
The Americans with Disabilities Act (the “ADA”) requires that employers provide employees who have disabilities with reasonable accommodations. The Covid19 pandemic has complicated ADA compliance when employees with preexisting disabilities that present a greater risk of illness or death request reasonable accommodations—usually in the form of remote work.
But both practical and fiscal issues may make accommodating such a request impossible. The below guidance is taken from recent United States Equal Employment Opportunity Commission (the “EEOC”) publications, last updated September 8, 2020 and is designed to assist employers in navigating remote work reasonable accommodations requests.
Reasonable Accommodations Overview
A “reasonable accommodation” is a change in the work environment that allows an individual with a disability to have an equal opportunity to apply for a job, perform a job’s essential functions, or enjoy equal benefits and privileges of employment. Employers may choose among effective accommodations.
Where it is unknown (or non-obvious) whether the employee’s disability necessitates an accommodation, employer may ask questions (e.g., 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 position (that is, the fundamental job duties) or request medical documentation.
Employers have no duty to provide a particular accommodation, however, if it imposes an “undue hardship.” An undue hardship is a significant difficulty or expense for the employer, taking into account the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business.
But even if a particular accommodation constitutes an undue hardship, the employer must still consider other accommodations that do not pose an undue hardship (but does not have to provide the accommodation that would impose an undue hardship). The EEOC expressly recognizes that employers may have—due to the Covid19 pandemic—less resources and funds to provide accommodations:
[T]he sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time—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 can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic. For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.
Put simply, an employer’s fiscal condition is relevant to whether granting an employee’s accommodation request to work remotely would constitute an undue hardship.
Preexisting Disabilities and Remote Work
Employees with preexisting disabilities, which may put them at a higher risk of danger if exposed to Covid19, commonly request remote work. Such requests are not without precedent—remote work is a well-recognized accommodation by the ADA.
If an employee is granted an accommodation to work remotely, the reasonable accommodations requirement extends from the office to remote and telework sites. In other words, if an employee with a disability is working from home and requires a reasonable accommodation to perform her or his work, the ADA requires the employer to provide a reasonable accommodation. A reasonable accommodation that is not an undue hardship in the workplace, though, might pose one while working remotely. For example, an employer may not be able to conduct a needs assessment in an employee’s home or retrofit an employee’s home if a physical accommodation is requested. If an accommodation at an employee’s remote work site does present an undue hardship, the employer has a duty to cooperate with the employee to determine whether an alternative accommodation is available.
When Remote Work Won’t Work
Some workers who cannot perform their work duties remotely have disabilities that place them at a greater risk of illness and death if exposed to Covid19. Because such employees cannot perform the jobs remotely, the accommodation of remote work for such employees would impose an undue hardship on the employer. In such cases, the EEOC provides that employers consider temporary accommodations to reduce the likelihood of exposure as an alternative accommodation to remote work:
Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.
Low-cost solutions achieved with materials already on hand or easily obtained may be effective. If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.
Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.
The EEOC guidance makes clear that there may be accommodations that both (1) protect the vulnerable employee from exposure and (2) are reasonable for the employer to provide: “There may be reasonable accommodations that could offer protection to an individual whose disability puts him [or her] at greater risk from Covid19 and who therefore requests such actions to eliminate possible exposure.” Lastly, when confronted with remote work requests made by employees whose jobs cannot be performed remotely, employers should document the steps taken when considering alternative accommodations that reduce the employee’s exposure consistent with the EEOC’s guidance.
We continue to closely monitor the situation and update this information to provide the latest workplace and legal developments related to Covid19. For more information on ADA and Covid19 guidance, visit https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. We expect your questions and our answers will change as the situation develops. For answers to your specific questions and for the newest developments, please visit our website at www.donnellygross.com/covid-19-resources/ and contact us at Donnelly + Gross at 352-374-4001 or directly by email:
Paul Donnelly paul@donnellygross.com
Laura Gross laura@donnellygross.com
Jung Yoon jung@donnellygross.com
Jim Brantley jim@donnellygross.com
Cole Barnett cole@donnellygross.com
We are here to support you.
*This publication is for general information only and intended for clients and friends of Donnelly + Gross. It should not be relied upon as legal advice as the law related to each situation varies. Moreover, workplace law related to Covid19 is dynamic and changing daily. The sharing of this information does not establish a client relationship.