Return to Work Resistance: Navigating the ADA Interactive Process and COVID-19 Disability Accommodation Requests

As vaccine proliferation continues, employers are preparing to welcome their workforces back to offices and job sites across the country.  While many Americans are eager to return to pre-pandemic life, employers can expect resistance from employees recalled to the office, particularly from those whose medical conditions put them at greater risk for complications from COVID-19.  Reviewing best practices under the Americans with Disabilities Act (ADA) and guidance from the Equal Employment Opportunity Commission, this post provides employers with tips for engaging in an effective interactive process with employees seeking disability accommodations for risks associated with COVID-19.

Under the ADA, employers are required to provide reasonable accommodations to employees with disabilities as long as doing so does not pose an “undue burden” on the employer (which is generally a high burden for employers to meet).  Integral to this obligation is the requirement that employers engage in an interactive process with employees, and often their health care providers, to learn about the nature of the employee’s disability and evaluate what (if any) reasonable accommodations would allow the employee to perform the essential functions of their role.  Examples of reasonable accommodations include job restructuring, part-time or modified work schedules, acquiring or modifying equipment (including assistive technologies), and changing tests, training materials, or policies.

As employers reopen the workplace, they should plan to engage in the interactive process for accommodations related to COVID-19.  For example, employers that are mandating vaccinations may have employees that cannot do so because of a disability.  In addition, employees who are at higher risk for developing complications from coronavirus may require accommodations – including those individuals who are 65 years and older, pregnant, and/or have underlying impairments (such as heart disease, asthma, and diabetes).  Each of these situations will depend on individualized factors, and involves a fact-intensive assessment.  In anticipation of receiving such accommodation requests, employers should revisit their accommodation process to ensure compliance with the ADA.

Anticipating the uptick in accommodation requests related to COVID-19, the EEOC released comprehensive guidance to help employers navigate the ADA in light of the unique challenges facing employers during the pandemic.  Below are some of the key points that employers should keep in mind throughout the interactive process.  The full report is available here.

• Employers can request information about why a COVID-19-related accommodation is needed: Possible questions for the employee and/or their health care provider may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of their position (that is, the fundamental job duties).Given the pandemic’s strain on the health care system, however, employers should be pragmatic and flexible about requesting medical information – for example, consider approving the accommodation and noting that formal documentation will be provided at a later date, accept information from a past medical visit, or request authorization from the employee to communicate directly with the health care provider.
  
  
• For urgent requests, employers can provide temporary accommodations: as government restrictions change, or are partially or fully lifted, the need for accommodations may also change. In addition to limiting the exchange of information between an employer and employee during the interactive process, employers can explore short-term accommodations, including specifying end dates for the accommodation. Employers may also provide a requested accommodation on an interim or trial basis, with an end date or a check-in date.
  
  
• Employers that implemented telework during the pandemic do not have to automatically grant continued telework to disabled employees: once workplaces reopen, employees can be required to request an accommodation in order to continue teleworking. The employer can restore all of an employee’s essential duties (including working at workplace), and then evaluate any requests for continued or new accommodations under the usual ADA rules. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Similarly, if the employer can effectively address the disability-related limitation with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

Against this backdrop, below are best practices for employers to keep in mind as they navigate the ADA interactive process:

• Prepare comprehensive job descriptions for all positions that give detailed explanations of all essential functions of the role. These job descriptions will be critical during the interactive process and should be provided to an employee’s medical provider so it can accurately assess whether any reasonable accommodations would allow the employee to perform the essential functions of their job.
  
  
• Engage in an open dialogue with the employee about the reasons why they believe that their requested accommodation will allow them to perform all of the essential functions of their position (keep in mind that regular attendance is generally an essential function of a position!).
  
  
• Ensure that this interactive dialogue is being properly documented, including any modifications to the accommodation or follow-up discussions. Using template forms can be a way to standardize the process and ensure consistent documentation. For example, consider creating a questionnaire to use as a guide for discussions with employees seeking an accommodation to work remotely.
  
  
• Be aware that an employer need not give an employee their requested or preferred reasonable accommodation; an employer has discretion to choose among effective accommodations. Similarly, an employer need not create a new position tailored to the employee’s abilities or limitations.
  
  
• Train managers and human resources employees to recognize requests for accommodation (employees often do not make formal requests and they do not need to reference the ADA by name!).Provide training and support for the individuals who are tasked with engaging in the interactive process with employees.

Keep in mind that the employment landscape is changing rapidly as the workforce begins to return to the office. Last week’s guidance from the CDC – eliminating the requirement for indoor mask-wearing for vaccinated individuals – illustrates the shifting sands that employers must navigate as they reopen workplaces.  In addition to following the best practices outlined above, keep in mind that this new CDC guidance does not trump local, state or federal rules, regulations or laws, including the anticipated COVID-19 rules from the Occupational Safety and Health Administration.  

For additional information about the interactive process under the ADA, or about workplace COVID-19 requirements in any state, please reach out to your Foley & Lardner LLP Labor & Employment attorney.