Employers’ Top 5 Questions About Return-To-Work Accommodation Requests
As the pandemic subsides and vaccinations positively impact the workplace environment, employers are beginning to make plans and create policies, procedures, and requirements for transitioning employees back to the workplace either in a new hybrid model or a traditional pre-COVID work schedule. As the target dates are being set for return-to-work, many employers are experiencing a sudden and simultaneous increase in accommodation requests. Kristen Gallagher, Chair of the Employment & Labor Law Practice Group at McDonald Carano, has been assisting employers of all sizes and types with their questions about how to handle accommodation requests. Below, Kristen shares her insights and advice on the five most common COVID-related accommodation request questions she receives from employers.
- What is the process for determining which accommodation requests should be granted?
- What types of COVID accommodation requests are unrelated to an ADA-qualified disability?
- What are examples of how some common accommodation requests could be handled?
- What can employers do to help supervisors involved in accommodation requests?
- What other laws or regulations should be considered?
1. How do employers determine which accommodation requests should be granted?
The Americans With Disabilities Act of 1990, as amended, requires covered employers to provide a reasonable accommodation to qualified individuals with a disability, unless it would cause an undue hardship to the employer. Job applicants are also protected by the ADA, and employers may have to provide reasonable accommodations to qualified applicants with disabilities. When an employer determines that the employer is covered by the ADA and the employee or applicant is a qualified individual, the employer is required to engage in an interactive process to: (1) determine the precise limitations created by the individual’s disability and (2) consider possible reasonable accommodations. Employers must evaluate requests for accommodation on a case-by-case basis. Unfortunately, there are no absolute rules about circumstances in which employers must provide an accommodation, which means employers are often not clear or are uncertain about their legal actions and obligations.
Key Takeaway: It is possible that the same accommodation request may be considered reasonable in one circumstance but unreasonable or unduly burdensome in another.
2. What types of accommodation requests are unrelated to an ADA-qualified disability?
There may be an increase in requests for reasonable accommodations given the increase in known and emerging mental health and medical issues relating to COVID 19. It is important for employers to explain the difference between reasonable accommodation requests that are directly related to a medical condition or personal health and those that are not. The latter type of requests could include challenges relating to availability of childcare, health issues of others in the home environment, or general personal concerns about working on-site or in an office setting. While these types of requests are unlikely to qualify as an ADA disability, employers should refrain from pre-judging requests for accommodations until they have determined whether the individual is qualified and engaged in the interactive process because each situation must be evaluated on a case-by-case basis. For those requests relating to a medical condition or personal health, it is also important to remember that there are some disabilities that pose a direct threat to the health and safety of others in the workplace. When there is no reasonable accommodation that can eliminate or reduce such a threat, employers can refer to the “direct threat” defense under which an employer may terminate an employee or refuse to hire an applicant who poses a significant risk even if that person has a disability as defined by the ADA and can perform the essential functions of the job.
Key Takeaway: It is important for employers, employees, and applicants to understand that not every situation in which employees or applicants may have increased risk conditions or increased risk concerns will be determined to be an ADA-qualified disability.
3. What are examples of how some common accommodation requests could be handled?
Common requests tend to fall in the categories of attendance, telecommuting, and modification of work schedules. Regular attendance at work is generally found to be an essential function of most jobs. This is because an employee who does not attend work is unable to perform any job functions, essential or otherwise. However, employers must reasonably accommodate an employee’s disability, which could include changing work schedules. Telecommuting may be a reasonable accommodation depending on the circumstances, but not where job functions cannot be done at home. It is important to note that the EEOC has noted that the ADA does not require an employer to permit an employee to telework as an accommodation to protect a family member with a disability from potential COVID-19 exposure. In telecommuting cases interpreting the ADA, the focus is generally on the nature of the work performed and on an employer’s preference for having workers physically present. If employees without disabilities are permitted to telecommute (regardless of the reason), an employer may have difficulty contending that is not an option for an employee with a disability with the same job. The EEOC has recognized that telecommuting is a form of reasonable accommodation and has provided guidance for employers and employees.
Key Takeaway: The COVID pandemic profoundly disrupted people’s personal and professional lives in ways that may have long-lasting impact on beliefs, perceptions, and feelings about work itself, the physical workspace, and the overall workplace environment. While employers may acknowledge these changes that employees and applicants may be experiencing, employers are not required to accommodate an employee or applicant’s hesitation of returning to the workplace or commuting to and from the workplace – whether caused by personal experience, sociopolitical factors, or ideological decisions.
4. What can employers do to help supervisors involved in accommodation requests?
Training managers or supervisors is important because they are often the first point of contact for most employees. This is important so that managers recognize requests for accommodation that may not be clearly articulated. Managers and supervisors should be instructed on what to listen for in meetings with employees, how to identify potential requests for accommodations, and that Human Resources should be alerted when an accommodation request is made to them. In general, it is the employee’s responsibility to inform their supervisor that they need an accommodation, whether COVID-related or not. A supervisor is generally not required to provide reasonable accommodations if they are not aware of the employee’s need for the accommodation. However, the EEOC’s guidance suggests that accommodation should be provided without request if the employer knows that the employee has a disability.
Key Takeaway: Employers should review policies and procedures and make necessary updates to ensure they accurately reflect the current legal authority and specifically identify individuals who employees should contact if they have questions.
5. What other laws or regulations should be considered?
The EEOC enforces numerous workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA), but these anti-discrimination laws do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities. Employers need to check for other obligations that may exist under state or local law, particularly through legislation, a governor’s executive order, or agency guidance regarding temporary or permanent protections related to the COVID-19 pandemic.
About McDonald Carano
McDonald Carano has been shaping Nevada’s legal, business, and policy landscape since our founding in 1949. With more than 60 lawyers and government affairs professionals working from offices in Las Vegas, Reno and Carson City, we are Nevada’s law firm for business. Our local, national and global clients include Fortune 500 corporations, fast-growth and mid-market companies, entrepreneurs and startups, non-profit organizations, government entities, and high-net-worth individuals. Our attorneys deliver cross-discipline, one-stop, commercial law and government affairs counsel. Our dedication to clients, innovative thinking and practical solutions based in sound business and legal judgments are at the heart of our practice. For more information, please visit mcdonaldcarano.com or send an email to firstname.lastname@example.org.
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