In this current age of COVID-19, employers are seeing more and more requests from employees seeking a workplace reasonable accommodation. Some of these requests emanate from the employee’s own health condition that increases risks for COVID-19 complications. On the other hand, some employees are seeking to avoid coming into work because close family members have health conditions that make them more susceptible to COVID-19. So, how should employers respond to such requests?
As most employers know, possible accommodation duties flow from both federal and state anti-disability discrimination laws. For example, the Americans with Disabilities Act (“ADA”) requires that accommodations be made to assist a disabled employee in performing the essential functions of an employee’s job position. Here, in New Jersey, the state’s Law Against Discrimination (“LAD”) also imposes a similar duty.
In facing the accommodation requests of the kind referenced above, the first thing that I counsel employer clients to do is confirm that the employee indeed has a disability that may need to be accommodated. In today’s COVID-19 world, we are seeing more and more employees seeking an accommodation of working virtual from home because of concerns about vulnerable family members with whom they live. Since the employee is not asking for an accommodation for his/her own medical condition, neither the ADA nor the LAD requires that the employer accommodate the request. This does not mean that the employer cannot work with the employee to address such concerns-what it does mean is that legally the employee has no right to demand such an accommodation.
If the employee is conversely seeking an accommodation for his or her own medical condition, the employer is obligated to explore the possibility of an accommodation by engaging in the interactive process of examining possible ways of addressing the request. This interactive back and forth includes the right on the employer’s part to obtain medical information to substantiate the request for accommodation. For employees who have a greater vulnerability of COVID-19 health risks, several of my clients are also seeing a higher volume of requests to work from home. Many of these clients are concerned about providing such an accommodation because it gives rise to possible burdens on staffing and the ability to provide services to clients. As part of any analysis of such a request, my recommendation is always to scrutinize closely the medical reason for the request, and obtain detailed information from the medical provider about whether other non-work restrictions have been imposed. For example, has the doctor told the employee that he/she should not be leaving the home for any reasons or placed any similar type of stay at home restrictions on the employee. I also urge employers to alert the employee’s doctor to the steps taken in the workplace to protect employees from COVID-19 exposure so the physician can assess risks in light of the actual workplace to be encountered by the patient employee. Using such an exacting approach will better allow the employer to ferret out legitimate accommodation needs from those which arise from general fears of possible workplace COVID-19 exposure that ordinarily are not a sufficient legal reason for an accommodation.
The interactive process is a critical aspect of handling all workplace accommodation requests and should not be ignored because of the possible abuse of accommodation requests by employees fearing COVID-19 exposure. Even in situations where ultimately the employer may believe that it will cause an undue hardship to accommodate the employee, the interactive process must still be pursued before ultimately denying the accommodation request due to an undue hardship. In my experience, this is where employers get themselves into the most trouble. In this COVID-19 world, it is tempting to just ignore this step in the process and deny a suspicious accommodation request outright, but doing so is fraught with peril.
So, by following the foregoing steps, employers will better handle accommodation requests in the age of COVID-19 and minimize potential risks of liability claims hurting your business.
Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.