COVID ADA Disability Compliance Update
CDC Updates “At Increased Risk” and “Might Be at Increased Risk” Lists
Understanding CDC Guidelines in the Context of Reasonable Accommodation Requests
— Early on, the CDC published guidelines outlining certain individuals were “at higher risk” of severe illness including those over 65 years of age, and those with underlying health conditions.
— In September, 2020, the CDC significantly revised these guidelines, essentially doing away with a set 65 years of age stating the older an individual is, the more at risk the individual is of severe illness. It also published two lists in regards to those with underlying medical conditions — those that “are at increased risk” and those that “might be at increased risk” if they were to contract coronavirus.
— Since, then the CDC continues to tweak these two lists. On October 6, 2020, the CDC made changes to place those who are “obese” and “severely obese” on the first list, and those who are “overweight” on the second list. Most recently, on November 2, 2020, the CDC moved pregnant women back onto the first list (it had previously been on the second list).
— Current CDC lists for those “at increased risk” and those that “might be at increased risk” can be viewed here
What does all this mean for those who are managing reasonable accommodation requests?
In truth, not a whole lot. When you add up the number of Americans suffering from health conditions on the first list alone, it totals 293 Americans — that’s almost 89% of the entire U.S. population.* Lucky for us disability compliance practitioners, the EEOC has provided us guidance for the most common workplace accommodation request — to work from home. The EEOC states that work from home accommodation requests should be treated in accordance with ADA law. From the EEOC’s guidance:
D.15. Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation? (9/8/20; adapted from 3/27/20 Webinar Question 21)
Answer: No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.
To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.
The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.
This means your process for managing COVID-related workplace accommodation requests is the same as you would manage non-COVID-related workplace accommodation requests. Now, that said, there are some differences in how you might be managing workplace accommodation requests in general because of circumstance of being in a worldwide pandemic.
Shaw HR Consulting has created a program that can be customized for your organization and its philosophy with flowcharts, template letters, questionnaires, FAQ, scripts and a video training. You can view the training and download the materials for free at www.shawhrconsulting.com/covid.