Navigating employee accommodations under the Americans with Disabilities Act, the Family Medical Leave Act and other employment-related laws often is a bit tricky for small businesses. COVID-19 has added even more accommodation issues. For example, what if an employee can’t wear a mask in the workplace because of a health condition, but allowing that employee to go mask-less might endanger other workers and, in some locations, break local or statewide ordinances?
To help small businesses traverse this thorny landscape, below are answers to the eight most common accommodation issues small businesses may face as the pandemic drags on.
1. One of our employees has asthma, which makes it difficult for him to wear a face covering. If we let him go without a mask in our small workplace, though, we might be putting other employees at risk. How can we follow the relevant laws and make sure we’re being fair to everyone?
According to the Equal Employment Opportunity Commission’s guidance, you may require employees to follow all your COVID-related safety practices, including wearing a mask. However, you also must offer reasonable accommodations for employees who have qualifying conditions under the ADA or the FMLA, provided doing so doesn’t cause an undue hardship on your business.
You may first request that the employee’s health provider verify that the asthma makes it unadvisable for the employee to wear a mask. With that confirmation, if your employee’s asthma constitutes a qualifying condition under FMLA, he may be eligible for up to 12 weeks of job-protected leave. If he isn’t eligible or already has used his eligibility, he still may be entitled to reasonable accommodation under the ADA.
Talk with the employee to identify an accommodation that meets his need and takes fellow workers into consideration. Options could include asking the employee to wear an alternative covering, such as a face shield, allowing him to telework or physically separating his workspace from colleagues, among others.
You may need to make similar accommodations for employees who want to avoid PPE because of their religious beliefs or mental health concerns. The duty to accommodate religious objections under Title VII is less stringent than the similar ADA obligation, however, and courts typically have not required employers to make religious accommodations that represent a significant hardship. Encourage workers who have mental health concerns to access your employee assistance program if you have one.
2. An employee who requested an accommodation says she’s being treated for a chronic condition and provided a doctor’s note backing up the claim. However, neither the employee nor the physician clarified what the condition is. Can we ask?
Describes the nature, severity and duration of the employee’s impairment;
Clarifies how – and how much – the disability limits the worker’s ability to perform her essential job duties; and
Substantiates the need for the requested accommodation.
In this case, because the employee doesn’t appear to have met those criteria, you may ask what the condition is – as long as you ask only for information that allows you to determine:
Whether the ailment is a qualifying disability under the ADA;
How the disability may limit the worker’s ability to perform her essential job duties;
Whether her chronic ailment may put other employees at risk; and
What accommodation may allow her to perform her essential duties.
You must, of course, maintain the employee’s privacy around the information you receive, and you should let her know about any state or local disability laws that may provide additional benefits.
3. The coronavirus can strike people of any age, but the Centers for Disease Control has said those older than 60 and those with certain underlying health conditions are at higher risk. Are employees in these categories automatically entitled to accommodations?
In late December 2020, the CDC updated the list of underlying medical conditions that, according to the agency’s data, put people at greater risk for severe illness if they contract COVID-19. EEOC guidance says workers who have any of these underlying conditions may request reasonable accommodations. The guidelines permit you to request medical confirmation of the employee’s condition before arranging an accommodation.
Workers age 40 and older are protected from bias by the Age Discrimination in Employment Act. Nothing in the ADEA specifically obligates you to grant a COVID-related accommodation to an older worker, but the EEOC has said businesses are “free to provide flexibility” to workers over 65. Just be sure you don’t offer an accommodation to other workers – such as allowing a younger employee to telework because she is afraid to return to the workplace during the pandemic – without making the same accommodation available to an older employee who expresses the same concern.
4. An employee’s spouse has Type 2 diabetes, an underlying medical condition on the CDC’s list. The employee doesn’t want to work onsite, fearing that would increase her spouse’s risk of coronavirus exposure. Is our company required to provide that accommodation?
In its guidance on COVID-19 and the ADA, the EEOC says that “although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment.” This means you don’t have to consider the family member’s concerns or provide an accommodation based on the spouse’s health issues.
However, you may wish to grant the work-at-home accommodation request if doing so isn’t an undue hardship for your business. You would need to make a similar arrangement with any employee who asks to telework because of a high-risk family member living in his or her home. For any employee making such a request, you are within your rights to ask for a physician’s confirmation of the family member’s high-risk status.
5. An employee with a compromised immune system has asked for a teleworking accommodation. Can we request updates on the employee’s condition? Can we establish a date for the employee to return to onsite work?
Generally, if the employee has given you enough information to support the need for an accommodation, you can’t ask for health updates or set a return-to-the-workplace date. The exception would be a job-related need, such as a change in the essential functions of the employee’s job that would make it impossible for those duties to be performed from home.
6. Some of our workers are nervous about coming back to the workplace. Can we require them to return if they don’t have disabilities or high-risk conditions?
The short answer is that you can require a return to onsite work for any employee who isn’t entitled to an accommodation under employment laws. Understanding that it isn’t uncommon for employees to feel uncomfortable coming back to the workplace in the midst of the pandemic, you also can ease their anxieties by reminding them about safety measures you’ve implemented, such as increased worksite cleaning, installation of partitions between workspaces or rearranging your space to allow social distancing.
7. Is pregnancy a relevant reason to grant an employee’s work-at-home request?
Pregnancy alone probably doesn’t entitle the employee to an accommodation. The Pregnancy Discrimination Act, in fact, requires that pregnant workers receive the same treatment non-pregnant, similarly abled or disabled workers do.
A high-risk pregnancy or a pregnancy-related medical condition, however, could qualify as a disability under the ADA. In that case, you would need to work with the employee to decide on a mutually agreeable accommodation. The EEOC says such accommodations might include telework, modified responsibilities or work schedules or leave. Check state and local laws, as well, because they may require that you provide other accommodations for this pregnant worker.
8. As we consider employees’ accommodation requests, may we also consider the effects of the pandemic on our business?
Many small businesses have experienced financial losses because of COVID-19. It’s conceivable that an accommodation that would have been easy to grant before the pandemic could create an undue hardship now.
“Undue hardship” is “an action requiring significant difficulty or expense,” considering the nature and cost of the accommodation in relation to the organization’s size, resources, nature and structure. If an employee’s requested accommodation represents, for example, a large extra expense, it’s likely the EEOC would view the accommodation as unreasonable and would not require you to adhere to it.
In the interest of employee care and morale, however, it is always best to work with employees to agree on alternative accommodations that allow them to continue to be a productive member of your team without creating an undue hardship on your business.