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Grappling with reasonable accommodation requests from disabled employees can be difficult, even without layering COVID-19 related concerns on top of the process. To help employers stay compliant with the Americans with Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) recently issued new Q&As regarding how to address the interactive process during the COVID-19 pandemic. Here are the significant points that employers need to know.

COVID-19 May Factor into Undue Hardship Analysis

The EEOC states that circumstances related to the COVID-19 pandemic may be relevant to whether a requested accommodation may be denied because it would impose an undue hardship on the employer. As you likely know, the ADA requires employers to provide reasonable accommodations to qualified individuals with a disability absent undue hardship. Many factors must be considered when an employer determines whether an accommodation would pose a significant difficulty or expense that would justify denying it because it causes an undue hardship. According to the EEOC’s recent guidance, issues related to the pandemic may be considered in that analysis as well, meaning that an accommodation that may not have posed an undue hardship before the pandemic may pose one now.

For example, during the pandemic, it may be significantly more difficult to obtain certain adaptive equipment for a disabled employee. Or, with employees working from home, it may be nearly impossible to offer assistance to perform marginal job functions or to conduct a needs assessment. In addition, accommodations that may not have imposed a significant expense to a thriving employer prior to the pandemic may now impose an undue hardship due to the sudden loss of revenue, new budget constraints, or reduced discretionary funds. If certain accommodations impose undue hardship during the pandemic, employers are encouraged to work with affected disabled employees to find alternative, low-cost accommodations to keep employees working.

Temporary Accommodation May be OK

Recognizing that employers have limited time during the pandemic, the EEOC states that employers may choose to eliminate or shorten the exchange of information during the interactive process and simply grant an employee’s requested accommodation. Although employers may continue to request information from an employee about why an accommodation is needed and request medical documentation to determine whether the employee has a covered disability, employers may adapt the interactive process to grant an accommodation on a temporary basis during the pandemic.

Employers also may opt to put an end date on an accommodation, such as May 31 or when the employee returns to the workplace following the lifting of stay-at-home orders, and then re-engage in the interactive process after that date for any ongoing accommodations. In addition, employers are permitted to provide a requested accommodation on an interim or trial basis while waiting for the employee to return medical documentation. This flexibility should help both employers and employees address ADA concerns during this stressful time.

ADA Return-to-Work Considerations

As states consider lifting stay-at-home orders, employers are asking what steps they can take to keep employees safe from COVID-19 when they return to the workplace. The EEOC answers those questions by reiterating that employers may make disability-related inquiries and conduct medical exams if they are job-related and consistent with business necessity. That means employers may take employees’ temperatures, ask questions about COVID-19 symptoms, and require employees to self-report a COVID-19 diagnosis as long as it is recommended by the CDC or other public health authorities and is required of all employees entering the workplace.

Employers also may require employees to wear gloves and masks, engage in social distancing in the workplace, and wash their hands frequently. However, if a disabled employee requests a reasonable accommodation related to one of these requirements, such as requesting to wear non-latex gloves or forgoing a COVID mask because the employee uses a nasal oxygen tube, the employer should engage in the interactive process with the employee to determine possible modifications.

What Employers Should Do

Employers should continue to follow the best available objective medical advice as well as guidance from the CDC related to keeping employees safe in the workplace during and after the COVID-19 pandemic. Employers should continue to engage in the interactive process when considering reasonable accommodations for disabled employees but may also consider temporary accommodations and impose end dates for reevaluation at a later date. Organizations that are hard hit by the pandemic may consider their new financial circumstances when conducting an undue hardship analysis. But as always, be sure to document those changed circumstances and any relevant factors that led to the denial of an accommodation so that you can support your decision should it be challenged. Finally, when deciding whether to screen employee temperatures or require personal protective gear upon return to the workplace, be careful to apply those requirements equally for all similarly situated employees so that you do not unwittingly engage in unlawful disparate treatment based on a protected characteristic.

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.


Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.

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