Some jobs can only be done on-site or in-office, and for those with pre-existing conditions that make them at-risk of COVID-19, this isn’t possible. However, there are reasonable accommodations that could be put into place to provide protection and limit exposure to the virus. The key concept here is understanding “undue hardship.” Undue hardship is the level at which the employer can meet the needs of the disabled employee without suffering said hardship. However, employers cannot just generally conclude that the accommodation would bring them or the business hardship.
An assessment must be done to provide clear and specific metrics on how and why the accommodation would incur hardship. To review the factors that go into such as assessment, please see the Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA. Some reasonable and low-cost accommodations could include temporary transfers or change in assignments, a modified work schedule, or achieving an accommodation with materials already on-hand such as barriers to ensure physical distancing. While it is the employee’s duty to inform their employer of need for an accommodation, it is the employer’s duty, however, to initiate and engage in what is called the “interactive process.”
This interactive process is an obligation of the employer to conduct dialogue with the employee and do everything that they reasonably can do to provide relief. Sometimes, it is also the employer’s duty to engage in the interactive process, even if the employee has not directly requested assistance. If the employer knows that their employee has a disability and that they desire an accommodation, it is their responsibility to start the interactive process. Failure to conduct the interactive process does not automatically result in liability under the ADA, but it can if it results in the employee not receiving accommodation when they do in fact have a disability and desire accommodation. Notice of disability and need for accommodation can come from mediums other than the employee themselves such as FMLA leave paperwork, family members or friends, or the observable inability to perform job functions and symptoms of the disability that are obvious to the supervisor and other employees. These symptoms or other mediums of notice of disability cannot be ignored by the employer, even if the employee has been cleared to return to work.
For those that didn’t need accommodations prior to COVID-19 but are affected now, whether it be because of mental illness such as anxiety or depression, may now put in a request. However, it is necessary for the employer to take steps to determine whether or not it is a legitimate condition, whether it be through requesting medical documentation or through the interactive process. Determining the disability will be vital in making sure that it falls under the ADA’s definition and therefore qualifies for reasonable accommodation, absent undue hardship. The EEOC does highlight that the circumstances of the pandemic may change the company’s level of undue hardship and an accommodation they may have been able to provide prior to the virus, may not still be financially feasible or sustainable today.
“Critical infrastructure workers” and “essential critical workers” are all still very much covered by the ADA and the Rehabilitation Act, and all other equal employment opportunity law. Employers that receive disability requests from critical and essential employees must process them as they would any other employee. The only determining factors in their eligibility will be dependent on whether or not they have a disability, and if there is a reasonable accommodation that can be set into place for them, without incurring undue hardship on the employer.