Many individuals with medical conditions managed through medication and/or lifestyle adjustments are finding themselves particularly vulnerable during the Covid-19 pandemic—especially when it comes to their employment. Some of these individuals may not previously have requested a reasonable accommodation for a heart or lung condition because they work in an office environment with sedentary duties.
This FAQ is intended to help employees navigate their options, from the basics to the nuances during this pandemic.
Q. My employer is making me come to work but I have a disability that makes me more likely to get really sick if I become infected with COVID-19. What can I do?
A. A “disability” under the Americans with Disabilities Act, is a medical condition that substantially limits one or more major life activities, such as standing, breathing, walking, etc. You can request a reasonable accommodation to help minimize your risk of catching COVID-19 in the workplace and/or during your commute.
Q. My employer says I am entitled to a reasonable accommodation once I get sick but not to help protect me from getting sick. Is that right?
Q. No. Employees with a disability that makes them more likely to become severely ill if they become infected with COVID-19 are entitled to a reasonable accommodation to minimize the risk of infection.
Q. What is a reasonable accommodation?
A. A reasonable accommodation is:
- a workplace adjustment (which may also relate to an employee’s commute);
- for a qualified employee with a disability (i.e., an employee who possesses the skills or qualifications necessary to perform the duties of the position);
- which assists the employee in performing the essential functions of their position;
- and which is not an undue hardship on the employer (an undue hardship is a modification whose cost or other requirements would pose a severe financial or organizational burden).
Q. How do I request a reasonable accommodation?
A. Requesting a reasonable accommodation is easy.
First, depending on the size of your organization, there may be a specific person designated to receive and process these requests. If you aren’t sure, ask Human Resources. If there is not a designated person, ask the person in your chain of command you feel most comfortable with. The request may be as simple as “I have a condition which makes me more likely to become severely ill if I catch COVID-19. I am requesting a reasonable accommodation.”
Then, suggest the reasonable accommodation you and/or your doctor thinks would be most effective. Be prepared, however, for your employer to suggest an alternative and to discuss that alternative in good faith. Importantly, you are not entitled to the accommodation of your choice; you are only entitled to an effective accommodation, even if it is the accommodation proposed by your employer. If you or your doctor does not believe the alternative accommodation proposed by your employer would be effective, you and your employer can negotiate for one that is mutually acceptable.
Finally, also be prepared that approval may not be automatic: your employer may need time to verify your disability and your need for the particular accommodation you requested, you may need time to get appropriate medical documentation, and your employer may need more time than normal to obtain any appropriate equipment. Both you and your employer are required to engage in an interactive dialogue in good faith—during this pandemic, this includes extra flexibility and patience from everyone. During this time, you should ask for an interim reasonable accommodation, a temporary accommodation that may be the same or different than the accommodation initially requested and may include the use of leave if there are no other alternatives.
Q. What kind of reasonable accommodations may I request?
A. Which accommodation is most appropriate will depend upon the individual’s disability and job duties. To determine which accommodation(s) would be most effective for you, provide your physician with a copy of your position description and discuss your request and any alternative(s) proposed by your employer. Common requests during this time include personal protective equipment (PPE), teleworking, and the use of leave.
Q. Is my employer required to grant my request?
A. It depends. An employer is required to approve a request for a reasonable accommodation which assists the employee in performing the essential functions of their position unless the accommodation would be an undue hardship. What may constitute an undue hardship is fact-specific and the current pandemic may have an effect. If an employer denies a request as an undue hardship, the employer should explain the basis for its decision and offer alternative accommodations, where possible. If an employee is facing denial of a request for a reasonable accommodation, they should speak with an attorney about the specific facts.
Q. I have a disability but I have not requested a reasonable accommodation and do not want one. My employer is requiring that all employees with any disability stay home and use their leave. Can they do that?
A. No. An employer may not exclude an employee from the workplace because of the employee’s disability unless it has a reasonable belief, based on objective evidence, that the employee’s disability makes the employee a threat in the workplace. An employer also may not exclude an employee from the workplace because the employee has a record of a disability or because the employer perceives the employee to have a disability.
Q. My employer says that I either have to come to work or stay home without pay, even though I have sick and vacation time available. Can they do that?
A. No. Although absence from work is a less common accommodation, and the courts differ on the circumstances under which this is appropriate, if an employer is offering or requiring absence from the workplace due to an employee’s disability, the employer cannot forbid the employee from using available leave during that time.
Q. I have requested a reasonable accommodation, but my employer is requesting medical documentation. Can they do that?
A. It depends. If an employer already has knowledge of the disability and the ways in which the disability limits the employee, the employer may not request the employee produce additional documentation.
Q. My employer is requesting medical documentation before approving my request for a reasonable accommodation, but I am having a hard time getting a medical appointment due to COVID-19 restrictions. What should I do?
A. Even where the employer may request documentation, the EEOC advises employers to be flexible during this time and suggests accepting alternative forms of verification such as prescriptions or health insurance records. Identify what alternative confirmation you may have available and talk to your employer’s disability coordinator.
Q. My employer is allowing me to telework due to COVID-19, but I have accommodations in the workplace that I do not have at home. Are they required to provide the same accommodations while I telework?
A. Employees are entitled to reasonable accommodations even when teleworking; however, there are unique factors that come into play. For example, if an employee already owns equipment at home, the employer may not be required to purchase a duplicate for home use. As another example, if the employee is only teleworking because of the pandemic, the relatively short duration of the telework arrangement will factor into an employer’s undue hardship analysis in terms of cost. Finally, as with any request for an accommodation during this time, supply shortages and delivery delays caused by the pandemic may impact the request.
Printed with permission.
About the Author: Elisabeth Baker-Pham is an Associate at Kalijarvi, Chuzi, Newman & Fitch. She represents employees and labor unions nationwide, advocating on their behalf in matters relating to claims of discrimination, harassment, and retaliation, wage and hour violations, whistleblower protections, and collective bargaining violations.
Before moving to D.C., Lisa was the Acting Director of the Office of Labor Relations for a state agency, where she previously served as labor and employment counsel. She provided daily guidance regarding a wide range of labor and employment matters with a focus on proactive compliance and appeared in administrative fora in matters relating to claims of discrimination and the state’s civil service laws. Lisa began her career as an intern with the same agency while focusing her law school studies on the areas of labor and employment law.
Lisa received her education at the University of North Florida (B.A. in Sociology and Political Science) and New England School of Law (J.D.). In law school, Lisa served as the Managing Editor of the New England Journal on Criminal and Civil Confinement.