The EEOC recently updated its guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, including several FAQs on reasonable accommodation and harassment. 

Reasonable Accommodation

There are 12 FAQs that deal with reasonable accommodation, but here are the main points an employer needs to know:

• Right now, everyone is thinking about remote work as the reasonable accommodation for employees with medical conditions that place them at high risk of complications from COVID-19. But, for jobs that must be performed onsite, there may be accommodations in the form of low-cost physical modifications, such as designating one-way aisles, using barriers such as Plexiglas, or objects such as tables to ensure minimum distances between employees and their customers and coworkers whenever feasible.  

• Don’t forget about the normal reasonable accommodation steps, including engaging in the interactive process with anyone requesting an accommodation during this time, whether it be for a preexisting mental illness that has been exacerbated by the pandemic or any other disability. Ask questions to determine whether the condition is a disability, explore accommodation options, and request medical documentation if needed. 

• If an employee previously had a reasonable accommodation, they may still be entitled to an additional or altered accommodation if the pandemic has changed the employee’s circumstances. For example, the employee may need a different accommodation in order to work from home than what was needed when working in the office.

• Employers may need to allow temporary accommodations, if not fully equipped to engage in the normal interactive process due to COVID-19-related factors, such as the present inability to obtain appropriate medical documentation. Note that employees may request an extension that an employer must consider.

• Employers do not have to provide an accommodation if it poses an undue hardship, which means “significant difficulty or expense.” What was reasonable prior to the pandemic, may pose an undue hardship now. It may be unreasonably difficult to provide employees with temporary assignments or to remove marginal functions at this time. The sudden loss of some or all of the employer’s income stream, the amount of discretionary funds available, and whether there is an expected date for restrictions to be lifted on an employer’s operations are all considerations when deciding if a proposed accommodation would be significantly expensive. Overall, an employer must weigh the cost of the accommodation against its current budget.

• “Critical infrastructure workers” or “essential critical workers” are covered by the Americans with Disabilities Act and the Rehabilitation Act and are entitled to reasonable accommodation like any other employee.

Harassment Claims 

Employers can reduce the chances of harassment claims by explicitly communicating to the company’s workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases. Employers may remind employees upon a return to work that is against the law to discriminate against or harass anyone on the basis of a protected characteristic. It might be particularly helpful to specifically remind managers and supervisors of their roles in preventing and reporting harassment and discrimination.