Have you kept at-risk workers at home and brought back healthy ones? Are you enforcing blanket “no remote work” policies? You may be violating the Americans with Disabilities Act (ADA).
The COVID-19 pandemic has brought on a host of new concerns for disabled employees. Chief among those concerns is an increased risk of contracting the virus and the need to wear masks. When determining how to address these issues, businesses must walk a fine line to comply with the ADA and state, federal, and local regulations. With no shortage of unique situations and requests, as well as ever-changing regulations, employers understandably struggle to keep up.
Accommodation Requests in Disguise:
Even pre-COVID-19, the ability to spot an accommodation request was often challenging for employers. A common misconception when it comes to the ADA is that it is the employee’s responsibility to request an ADA accommodation formally. However, an employee’s request can trigger the ADA process even if it is part of an informal conversation with a supervisor or makes no mention of the ADA.
In the COVID-19 pandemic world, spotting an ADA request is even more difficult. A prominent example of this is an employee’s request to work remotely because their disability puts them at a higher risk to contract the virus and potentially experience life-threatening complications. In these circumstances, employers should consider allowing the employee to do so, or, if remote work is not feasible, they should consider investigating new lower-cost solutions such as using plexiglass shields, or implementing additional social distancing measures.
While having formal policies and procedures outlining how employees must make ADA requests may sometimes provide some cover for employers, the best practice is for employers to be on the lookout for ADA requests “in disguise” and engage in the interactive process. Employers should assess each formal or informal accommodation request individually as each request is unique.
Masks and PPE:
For some disabled employees, such as those with preexisting conditions that are more susceptible to the impacts of COVID-19, the use of masks and other personal protective equipment (PPE) are vital to their ability to report to work. For other employees, a disability or medical condition may prevent them from wearing a mask safely.
In circumstances where individuals cannot wear a mask or PPE equipment due to their disability or medical condition, the employer must weigh the need to protect other employees, clients, and customers and the ability to accommodate the employee. Most government orders and the CDC provide exceptions to mask wearing for individuals with severe health conditions. However, when assessing what accommodations to make, employers should equally consider accommodating disabled employees and protecting other employees and the company’s clients, customers, and business associates. As part of this assessment, employers should determine whether alternative gear or measures, such as face shields or remote work, would allow employees to perform their job duties safely and while also protecting others.
Another consideration for employers is whether modified PPE gear is necessary for employees who interact with disabled employees, such as a modified face mask for interpreters or gowns designed for individuals in wheelchairs, or whether religious accommodations are necessary. Ultimately, individuals who have conditions that prevent them from wearing required or recommended safety gear should work with their doctors for advice and recommendations, and employers should work with employees to figure out what is reasonable and feasible under the circumstances.
Don’t treat employees differently unless they ask for an accommodation.
Employers have faced difficult employment decisions throughout the COVID-19 pandemic. Many businesses have had to make challenging employment decisions quickly while also attempting to pivot business models, learn new regulations, and apply for loans to stay afloat. When determining which employees to layoff or which to bring back, some businesses have taken into account the individual health needs and risks of individual employees. For example, some employers, unprompted, have brought young, healthy workers back into the office while requiring older workers with underlying health conditions to stay home.
While businesses have often proceeded this way to protect those at higher risk for COVID-19 complications, these types of actions could potentially be an inadvertent violation of the ADA and the Age Discrimination in Employment Act (ADEA). However, should an older employee with underlying health conditions ask to work remotely because they are at higher risk for COVID-19 complications, the employer should work with the employee to determine whether the employer can accommodate the employee’s request.
As employers continue to adapt to the “new normal” and work to stay up-to-date on new rules and regulations, they should keep decades-old laws in mind as they continue to apply during the COVID-19 pandemic. While the ADA, ADEA, and Title VII are well-established laws, their application is evolving during this time of monumental changes to the American workplace.
ABOUT SARAH SAWYER
As an experienced business advisor and litigator, Sarah works with business owners to implement policies and practices that keep their businesses running smoothly, helps them avoid expensive legal battles, and fights for them when litigation arises. Sarah focuses her practice on providing her clients with general business advice, drafting and analyzing employment documents ranging from employment agreements and severance agreements to employee handbooks, and litigating all aspects of general civil and commercial disputes.
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