When an individual requests a change at work for a reason related to the COVID-19 pandemic, an ADA covered employer is expected to initiate the interactive process to gather information and establish whether the individual has the right to receive an accommodation for a disability-related reason. Engaging in the interactive process is one way for employers to untangle the web of federal workplace requirements during a pandemic situation.
For the most part, the interactive process looks the same as it does during ordinary times: recognize the accommodation request; gather information; explore, choose, implement, and monitor accommodations. The second step of the process, gathering information, will usually yield the information needed to determine if the ADA applies or if, perhaps, a different federal law applies.
Recognize Who Is Seeking Accommodation Under the ADA
This COVID-19 pandemic has led to many changes in the way we work and do business. For many people, this means working at home due to a state-issued stay-at-home order. For others, it’s changed how they engage with people in the workplace. In response to COVID-19, many people are requesting to work at home as an accommodation, to isolate from others in the workplace, or to take leave. These requests are being made for various reasons and so an employer must recognize who is requesting the accommodation and why, in order to determine if the ADA applies. For example, employees who are requesting these kinds of workplace changes include individuals with and without disabilities, individuals who are pregnant, older workers, and caregivers of individuals with disabilities or young children.
To apply the ADA, an employer must know that the individual who is requesting accommodation is doing so for their own disability-related reason. The following questions will be useful in navigating this step of the interactive process:
Q: Is the individual requesting an accommodation due to symptoms associated with COVID-19, or because they have an impairment that puts them at higher risk for developing complications from COVID-19?
A: If yes, and if the impairment and/or need for accommodation is not obvious, the employer may gather information about the individual’s underlying impairment or COVID-19-related symptoms and the need for accommodation in order to establish the individual’s right to receive accommodation under the ADA. During the current COVID-19 pandemic, employers are encouraged to consider various means for obtaining disability-related ADA information to establish the right to receive accommodation.
Practical guidance on obtaining disability-related information for ADA purposes during the COVID-19 pandemic can be found in this resource.
Q: Is the individual requesting a change at work, to work from home, or to use leave to avoid the risk of exposure to COVID-19 in the workplace, but does not have an impairment?
A: If the individual does not have an impairment and is only seeking to avoid the risk of exposure to COVID-19, then this is not an ADA issue. However, while this particular situation is not one that would fall under the ADA, employers are encouraged to implement measures to slow the spread of COVID-19. This can include making changes to ordinary business operations and allowing employees to work at home or take leave.
Q: Is the individual requesting an accommodation to avoid the risk of exposure to COVID-19 due to pregnancy?
A: The CDC does include people who are pregnant among those who might be at higher risk of developing severe illness from COVID-19. For more information, see the CDC resource Information about Coronavirus Disease 2019: Pregnancy & Breastfeeding. While pregnancy alone is not an impairment under the federal ADA, workers who are pregnant might be able to request accommodations to avoid the risk of exposure to COVID-19 under the federal Pregnancy Discrimination Act (PDA).
The PDA is a federal law that protects pregnant workers from discrimination and requires covered employers to make job-related modifications for pregnant employees. Of course, an individual who is pregnant who also has a pregnancy-related impairment that is a disability under the ADA may be entitled to accommodation under the ADA. Some pregnancy-related conditions are disabilities that an employer may need to accommodate under the ADA. Additionally, various state and local laws may require accommodations and include leave rights for workers who are pregnant. PDA and ADA aside, employers do have discretion to make modifications that will keep employees safe during this COVID-19 pandemic.
Q: Is the individual requesting to work at home to avoid the risk of exposure to COVID-19 due to being over the age of 65?
A: According to the CDC, people 65 years and older are at higher risk for developing complications from COVID-19, but these individuals will not qualify to receive accommodations under the federal ADA solely on the basis of age. There is a federal law, the Age Discrimination in Employment Act (ADEA), that does protect older workers from age-related workplace discrimination, but the law does not require employers to accommodate workers on the basis of age. However, the EEOC reminds employers that if other comparable workers are allowed to telework in response to the COVID-19 pandemic, older workers should not be treated differently based on their age.
Q: Is the individual requesting an accommodation to avoid the risk of exposure to COVID-19 because they are a caregiver of an individual who is at higher risk for developing complications from COVID-19?
A: Caregivers of individuals with disabilities are not entitled to receive workplace accommodations under the employment provisions of the federal ADA, but alternative federal, state, or local requirements may apply. For more on the topic of caregivers and the ADA, see the JAN resource Accommodation and Compliance: Caregivers. Those with caregiving responsibilities may be entitled to leave under the federal Family and Medical Leave Act (FMLA) and/or the Families First Coronavirus Response Act (FFCRA).
These unprecedented times are certainly requiring workplace changes that are affecting millions of people across the country. Employers are doing their best to follow the workplace rules we know, and to engage in the interactive process under the ADA, but the COVID-19 pandemic is compelling everyone to be more flexible and resourceful in the way we work and do business. Let’s all work together to implement solutions to keep people, including individuals with disabilities, working.
Source: JAN.org
