What Employers Should Know About COVID-19 and the ADA

As more people get vaccinated and workplaces reopen, employers should be aware of issues related to the Americans With Disabilities Act or ADA, that may affect the return to the office. Understanding what is required of an employer covered by the ADA (generally, private employers with 15 or more employees) can help to make the return to the office safer for all concerned. 

Reasonable Accommodation

One of the cornerstones of the regulations that govern ADA is the concept of “reasonable accommodation.”  Title 1 of the Americans with Disabilities Act defines this as “a modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process. These modifications enable an individual with a disability to have an equal opportunity not only to get a job, but successfully perform their job tasks to the same extent as people without disabilities.”

Since the pandemic hit, employers may have seen an uptick in requests from employees for reasonable accommodations. 

Employers are not expected to purchase what could be considered “personal items” such as hearing aids or wheelchairs.  Some specific reasonable accommodations might include:

• Modifying the layout of the workspace
• Providing certain accessible software such as screen reader applications
• Adjusting work schedules to allow for medical care
• Providing leave

An excellent resource for employers who need guidance concerning reasonable accommodations in the workplace is the Job Accommodation Network as well as guidance on reasonable accommodations related to job performance.  These resources provide detailed information that can assist employers in determining how to document accommodation requests and what is and is not allowable within the scope of the ADA.

Face Masks in the Workplace

For a person with disabilities, wearing face masks can be a challenge. Individuals with the following conditions may find it difficult or impossible to wear a face mask:

• Asthma
• Chronic Obstructive Pulmonary Disease (COPD)
• Those with PTSD (Post-Traumatic Stress Disorder) or any condition of chronic anxiety
• Autistic individuals
• Cerebral Palsy, which limits mobility in the hands, may present challenges to face mask requirements
• Anyone utilizing a “puff control” wheelchair, which is controlled by the mouth, cannot wear a face mask

In these cases, alternative solutions must be considered as a reasonable accommodation.  Barriers between workstations, a reorganization of the workspace to provide adequate distance between employees or providing remote work opportunities can help resolve some of these challenges.

   

Undue Burden

The ADA provides employers with some guidance concerning the implementation of reasonable accommodations. This guidance allows employers to determine if it is within the reasonable ability of the company to provide the requested accommodation. Employers should consider several factors when determining if a particular accommodation would cause an undue burden to the organization, such as:

1.  the nature and cost of the accommodation needed
2. the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
3. the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
4. the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and
5. the impact of the accommodation on the operation of the facility

Reasonable Accommodation Requests

Employers should have a clear, pre-determined process for reasonable accommodation requests that is comparable for all employees.  There should be one designated person or department to whom/where the requests should be presented. The process should include an interactive process to help the employer discover and provide a reasonable accommodation, such as a conversation with the employee concerning the request and what, specifically, the individual needs.  An employer can:

1. Verify that the individual meets the ADA definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities); or
2. Request the employee to describe the needed modification; or
3. Request that the employee describe the individual's disability (the nature, severity, and duration of the impairment) and the extent to which their impairment limits their ability to perform work activity or activities.

The request for an ADA reasonable accommodation should be processed in a manner that gives appropriate urgency to the request. If the reasonable accommodation is approved, the employer should endeavor to implement the request in a timely fashion, and should maintain all records related to the request, the interactive process and the implementation.

As part of the interactive process, and before denying a request, the employer should work with the employee to determine if a reasonable alternative to their specific accommodation request can be determined without the imposition of an undue burden to the company. If the request is ultimately denied, the employer should carefully document the interactive process the employer engaged in and provide the reasons for the denial in writing to the employee, specifically the undue burden the request has caused. A risk management or Human Resources specialist may be invaluable in providing best practice advice to help a company determine what is and is not allowed under ADA and to provide potential alternative solutions.

The EEOC and Post-Pandemic Considerations

The EEOC has provided guidance to employers concerning the reopening of office space and what is and is not expected of employers.  According to the EEOC, “unless and until the high-risk worker requests a reasonable accommodation, the employer is not required to take any proactive measures specific to the high‑risk worker, and in fact doing so may be viewed as discriminatory treatment. The employer must determine whether any reasonable accommodations could reduce the risk to the point that the employee could safely return to the workplace and perform essential job functions.”

It is important for employers to be cautious in approving or denying requests for reasonable accommodations under ADA.  While the pandemic may have made these decisions more challenging, employers should remember that helping to accommodate those with reasonable requests can provide a more inclusive and pleasant workplace. The Americans with Disabilities Act is a template for best practices in making the workplace welcoming for all.

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