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April 20, 2020

COVID-19: Updated EEOC Guidance on Handling Requests for Accommodations, Return to Work Under the ADA

The Equal Employment Opportunity Commission (EEOC) recently updated its guidelines with respect to enforcing various federal statutes, including the Americans With Disabilities Act (ADA). All EEOC materials related to COVID-19 can be found here. What follows is a summary of the updates.

The first updated area is the addition of guidance on handling requests for accommodations under the ADA during the time when various stay-at-home orders are in effect. Whether employees are working in the workplace or teleworking, an employer still has the obligation to provide them with a reasonable accommodation. The updated guidelines emphasize that fact that, to the extent possible, the employer should handle such a request the same as a request for a reasonable accommodation would have been handled prior to the current situation.

If the employer receives a request for an accommodation and the employee’s disability is not obvious or already known, the employer may ask questions or request medical documentation to determine whether the employee has a “disability” as defined by the ADA.

Possible questions for the employee may include:

  1. How the disability creates the limitation
  2. How the requested accommodation will effectively address the limitation
  3. Whether another form of accommodations could effectively address the issue
  4. How a proposed accommodation will enable the employee to continue performing the “essential functions” of the employee’s position.

Given the nature of the current situation, the EEOC has stated that an employer may shorten or eliminate the interactive process and grant the employee’s request for an accommodation on a temporary basis. An employer may place an end date on an accommodation, for example, upon the employee’s return to the workplace. Employers may also choose to provide an accommodation on an interim or trial basis while awaiting requested medical documentation. Employees may request an extension of the accommodation, especially if circumstances change, such as an extension of a stay-at-home directive.

An employer may deny a request for an accommodation if it creates an “undue hardship,” which means significant difficulty or undue expense. The EEOC recognizes that, in some instances, an accommodation that would not have constituted an undue hardship prior to the pandemic could constitute an undue hardship now. Difficulty in conducting a needs assessment or obtaining certain items needed for the accommodation, especially if employees are teleworking, may be sufficient to create a “significant difficulty.” It may also be more difficult to provide employees with temporary assignments or remove marginal functions. The EEOC stated that if an employer determines that a request accommodation creates an undue hardship, the employer should discuss possible alternative accommodations with the employee.

Significantly, the EEOC’s updated guidance recognizes the financial impact that COVID-19 is having on employers. Prior to the pandemic, it was difficult for an employer to claim that a requested accommodation posed a significant expense when considered against the employer’s overall budget and resources. The EEOC now acknowledges the sudden loss of some or all of an employer’s income stream due to COVID-19 is now a “relevant consideration.” Additional relevant factors are the amount of discretionary funds available to an employer and the probable end date for the restrictions on an employer’s operations. These considerations do not mean that an employer may reject any request for an accommodation simply because it costs money, however. An employer must weigh the cost of the accommodation against its current budget while taking into account constraints created by COVID-19.

Looking to the future, the EEOC also provided guidance on when employees return to work. The ADA permits employers to make disability-related inquiries and conduct medical examinations (including taking an employee’s temperature) if job related and consistent with business necessities. Inquiries and reliable medical examinations meet this standard if they are necessary to exclude employees with a medical condition that would pose a direct threat to health or safety. Therefore, employers will be acting consistent with the ADA as long as any COVID-19 screening implemented is consistent with advice from the Centers for Disease Control and public health authorities for that type of workplace at that time. This could include asking questions about possible symptoms or taking temperatures, as long as the employer does not engage in unlawful, disparate treatment in the screening decision and exclusion process.

An employer also may require an employee to wear protective gear as part of the return-to-work process. Requests for reasonable accommodations concerning that protective equipment, however, must be considered (e.g., non-latex gloves for an employee with a latex allergy or gowns for employees who use wheel chairs). Religious accommodations must also be considered.

The requirements of the ADA, therefore, remain in effect during the COVID-19 pandemic. Employers must still make reasonable accommodations for an employee’s disability as long as that accommodation does not constitute an undue hardship. The EEOC, however, has taken into consideration the difficulties that COVID-19 is causing for employers by adjusting the criteria it will use to address claims of failure to provide reasonable accommodations.

If you have any questions regarding the content of this alert, please contact Alan Peterman, partner, at apeterman@barclaydamon.com or another member of the firm’s Labor & Employment Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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