Obermayer Rebmann Maxwell & Hippel LLP

As noted in last week’s HR Legalist, as places of business are re-opening this Fall, employers should expect requests to continue working remotely, as working from home has become the new norm. Employers are not necessarily obligated to agree to every request to work from home.  An important consideration for employers in deciding such requests involves those employees who qualify as being “disabled” under the Americans with Disabilities Act (“ADA”) or similar state or local laws, which prohibit employers from discriminating against qualified employees with a disability, on the basis of such disability.

The Americans with Disabilities Act

As a threshold matter, the ADA applies to employers with 15 or more employees. An employee is a qualified individual if they have a disability and can perform the essential functions of the job with or without reasonable accommodation, have a record of being disabled, or are regarded by the employer as being disabled. A protected disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities.

Generally speaking, the ADA requires employers to provide reasonable accommodations to employees with disabilities as long as doing so does not pose an “undue hardship” on the employer. Integral to this process is the requirement employers engage in an interactive process with their employees to assess what, if any, reasonable accommodation(s)  would allow an employee to successfully perform the essential functions of their position. Reasonable accommodations typically offered include, but are not limited to modification of work schedules, restructuring marginal functions of the employee’s role, or changing work policies. Importantly, employees are not necessarily entitled to their preferred accommodation, only an effective one. For example, an employee may ask to work from home, but a less burdensome and equal

Reasonable Accommodations and COVID-19

As employers ramp up their return to the workplace, this interactive process, specifically as it applied to assessing permission to work remotely, will be among the paramount considerations. COVID-19 has unique implications for the workplace inclusive of accommodations for those employees who are at higher risk for developing complications from coronavirus (such as individuals who are 65 years and older, pregnant, and/or have underlying health issues such as heart disease, asthma, or diabetes), or those employees who cannot receive a vaccine due to a disability. While a health issue like asthma may not usually be considered to be a disability, when coupled with COVID-19, even a moderate case of asthma may place an employee at a greater risk for serious illness, or death, and may qualify as a disability under the ADA.

In recognition of a relatively new persistent and significant health issue, “long COVID”, on July 26, 2021, the U.S. Department of Justice and the U.S. Department of Health and Human Services published guidance on how “long COVID” can also be a disability under the ADA. “Long COVID” occurs when an individual continues to experience coronavirus symptoms that can last weeks or months after first developing COVID-19, even if the initial illness was mild. The guidance provides resources for additional information and best practices to arm employers with how to respond to employees with “long COVID”.

The Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission (“EEOC”) is yet another resource for employers to assess the process for providing reasonable accommodations and does so in an easily digestible Q&A format. A few points from the EEOC worth noting for employers:

  • Employees with a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic may now be entitled to reasonable accommodation.
  • During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, employers may request information about why a COVID-19-related accommodation is needed. However, employers may only ask about certain medical information in this process.
  • Employers can provide temporary accommodations for urgent requests such as short-term accommodations or accommodations on a trial basis.
  • Employers that utilized telework during the pandemic are not obligated to automatically grant continued telework to disabled employees.
  • Employers may invite employees now to ask for reasonable accommodations they may need in the future when they are permitted to return to the workplace.

There is no one-size-fits-all legal analysis for assessing the appropriate reasonable accommodation(s) for any given employee. Moving forward, employers should consult with counsel to assess best practices and minimize legal risks while keeping in mind that all cases are different and depend on their unique facts.

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