Mon, 09/28/2020
On September 8, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance on reasonable accommodations available to disabled workers in today’s pandemic-influenced workplace. Generally, under the Americans with Disabilities Act of 1990 (“ADA”), covered employers must afford qualified employees with disabilities “reasonable accommodation” for their disabilities so the employees can apply for their desired job, perform the essential functions of their position, or enjoy equal benefits and privileges as other similarly situated employees. Accommodations that would cause an employer “undue hardship” are not required by the ADA. Because determining whether an accommodation presents an undue hardship depends on the facts and circumstances of each particular situation, the EEOC offers in-depth guidance, including its September 8, 2020 update. Several key takeaways from the new guidance are summarized below:
- Certain disabilities that put individuals at high risk of severe illness if exposed to COVID-19 may warrant additional accommodations, such as reducing contact to others, implementing one-way aisles, using plexiglass or other barriers to ensure minimum distances between customers or coworkers, temporary transfers, or modifying work schedules. The EEOC advises that “[f]lexibility by employers and employees is important” in determining the appropriate accommodations.
- Preexisting mental health conditions—such as anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder—may also warrant special accommodations for dealing with COVID-19 pandemic.
- The “interactive process” of determining the appropriate accommodation must still be observed, though the pandemic may present an “extenuating circumstance” for some policies.
- The pandemic’s effect on an employer’s circumstances—such as lost income streams—may also be relevant in determining whether an accommodation would present an undue hardship.
- “Critical” or “essential” workers are not exempted from the ADA. The EEOC stressed in the new guidance that “employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process requests as they would for any other employee.”
- Unfortunately, the ADA does not require employers to accommodate the disabilities of an individual’s family members (which might put those family members at risk for severe illness if they were to contract COVID-19, for example). However, as the EEOC emphasizes, “an employer is free to provide such flexibilities if it chooses to do so.”
The EEOC’s updated guidance is available at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. For more information on workers’ rights during the on-going pandemic, visit MSE’s Coronavirus Information page at: https://www.mselaborlaw.com/resources/coronavirus-information. If you think your employer has violated your rights under the ADA, contact MSE at info@mselaborlaw.com.
