COVID-19 and the Americans with Disabilities Act | Part Three

How can employers comply with the ADA’s reasonable accommodation requirement while maintaining workplace safety?

The Equal Employment Opportunity Commission (EEOC) is the agency tasked with enforcing federal employment discrimination laws, commonly referred to as the Equal Employment Opportunity laws (EEO laws). One such law is the Americans with Disabilities Act (ADA). Generally speaking, the ADA prohibits discrimination on the basis of disability in employment, public accommodations, and government programs, services and activities.

The focus of this blog post is how employers can comply with the ADA’s reasonable accommodation requirements while taking steps to ensure the safety of the workplace during the COVID-19 pandemic. The EEOC’s recently issued guidance in this area is summarized below. For more information, you can review the EEOC’s guidance here and here.

Overall, the ADA’s reasonable accommodation requirements remain unchanged during the COVID-19 pandemic. Thus, those requirements are discussed in detail below.

A. Where does the ADA’s reasonable accommodation requirement come from?

Generally speaking, the ADA states that no employer “shall discriminate against a qualified individual on the basis of disability in regard to…[the] discharge of employees…and other terms, conditions, and privileges of employment.” The word “qualified” is where the ADA’s reasonable accommodation requirements come in: a “qualified” individual with a disability is one who is one who can perform the job’s essential functions with or without reasonable accommodation and who possesses the requisite skill, experience, education, and other job-related requirements of the position.

Thus, if a reasonable accommodation will enable an otherwise qualified employee to perform his or her job’s essential functions, the employer must provide the reasonable accommodation.

B. What is a reasonable accommodation?

To be reasonable, a proposed accommodation must (1) enable the employee to perform the essential functions of the relevant job, and (2) it must be feasible for the employer under the circumstances. Thus, one element of determining whether a proposed accommodation is reasonable is the likelihood of success that the accommodation will have in enabling the employee to perform the job’s essential functions.

Examples of reasonable accommodations, depending on the relevant circumstances, might include making existing facilities used by employees readily accessible to and usable by individuals with disabilities, job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

An accommodation is not reasonable if it imposes an undue hardship on the employer, and an employer is not legally required to provide such an accommodation. An accommodation poses an "undue hardship" if it results in significant difficulty or expense for the employer, taking into account the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business. If a particular accommodation would result in an undue hardship, an employer is not required to provide it but still must consider other accommodations that do not pose an undue hardship.

C. When is an employer obligated to provide a reasonable accommodation?

The ADA requires accommodations for the knownphysical or mental limitations of an employee. Generally, an employer is obligated to provide a reasonable accommodation only once the employee has made a sufficient request for accommodation. While the employee need not use any magic words or specifically use the word “accommodation,” the employee's request must (1) be sufficiently direct and specific, giving notice that he or she needs special accommodation and (2) explain how the request is linked to a disability.

However, in some cases, the employer’s duties under the ADA can be triggered even without a request for accommodation by the employee. No request by the employee is necessary when the employer otherwise knew that an accommodation was necessary.

As mentioned above, an employer need not provide an accommodation, however, where the accommodation imposes an undue hardship on the employer. An accommodation poses an "undue hardship" if it results in significant difficulty or expense for the employer, taking into account the nature and cost of the accommodation, the resources available to the employer, and the operation of the employer’s business. If a particular accommodation would result in an undue hardship, an employer is not required to provide it but still must consider other accommodations that do not pose an undue hardship.

D. How hard must an employer work to accommodate a disabled individual?

Upon learning of an employee's disability – whether through the employee or through other means – the employer has an obligation to engage in a meaningful dialogue with the employee, commonly referred to as an “interactive process,” to find the best means of accommodating that disability. Both the employer and the employee are obligated to participate in good faith in this flexible, interactive process.

Where an employer fails to engage in an interactive process, and the process would have resulted in discovering a reasonable accommodation that would enable the disabled individual to perform the job’s essential functions, then the employer is liable under the ADA for failing to accommodate the individual’s disability. Moreover, the employer’s duty to provide reasonable accommodation is a continuing one, and it is not exhausted by one effort. Thus, before rejecting the accommodation requested by an employee, the employer should propose alternatives and work with the employee to find a reasonable accommodation that works for both parties.

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