Question of the Week: COVID-19 and ADA Reasonable Accommodations – week 3

Question of the Week: COVID-19 and ADA Reasonable Accommodations – week 2
August 17, 2020
Question of the Week: COVID-19 and ADA Reasonable Accommodations – week 4
September 8, 2020

COVID-19 AND ADA REASONABLE ACCOMMODATIONS

Question of the Week

WEEK 3

Question:

Can an employer require an employee to provide documentation to support a request to work from home accommodation for a personal medical condition, and if so, what can be required?  What if we don’t get questionnaires back?

Answer:

Yes.  Per the Equal Employment Opportunity Commission (EEOC)’s guidance, when an employer engages in the ADA interactive process the employer may seek disability-related information, as follows:

  • “… an employer only may seek information about an employee’s medical condition when it is job related and consistent with business necessity. This means that the employer must have a reasonable belief based on objective evidence that:”
    • “an employee will be unable to perform the essential functions of his or her job because of a medical condition or”
    • “the employee will pose a direct threat because of a medical condition.”
  • “Employers also may obtain medical information about an employee when the employee has requested a reasonable accommodation and the disability or need for accommodation is not obvious.”
  • “In addition, employers can obtain medical information about employees when they:”
    • “are required to do so by another federal law or regulation (e.g., DOT medical certification requirements for interstate truck drivers)”
  • Reference: https://www.eeoc.gov/laws/guidance/questions-and-answers-enforcement-guidance-disability-related-inquiries-and-medical

Have a conversation with the employee (Use Short Term Script 1) to let them know you will be seeking clarification from their provider.  Then send them a letter with a questionnaire for their provider (Form ST-1).  Look to customize the questionnaire based on Shaw HR Consulting’s “bank” of questions.

In spring, 2020, many providers were not seeing patients or responding to questionnaires.  Today, summer, 2020, we are seeing regular responses from providers.  An option to encourage employees to assist in seeking clarification is to offer employees a temporary two-week work accommodation of working from home while clarification is sought (language in short term script 1 and Form ST-1).  If clarification is not returned after two weeks, then call the employee (using short term script 3b) informing them they are now being placed on an unpaid leave (using whatever contractual leave that they have) until that clarification is returned.  Follow up by sending the employee a letter informing them of their leave of absence (Form ST-3b).

About the Shaw HR Consulting COVID-19 Disability Compliance Program

The program is being offered for free on the Shaw HRC website.

Program materials have been created to help employers manage accommodation requests during the COVID-19 pandemic related to disability — such as requests to work from home — at a time when organizations are asking employees to return to the workplace or requests for leave related to COVID-19.

The Shaw HR Consulting COVID-19 Disability Compliance Program includes:
  • General Guidelines
  • Video Training on the Materials
  • Sample Scripts
  • Template Letters and Forms
  • Flowchart

The Program is designed to offer employers an ADA compliant framework to manage work from home requests during this unprecedented time.  As with all compliant programs, a consistent process is key to ensure your good faith efforts are documented.  Shaw is happy to provide its clients with this process, as we work together as an HR community to continue doing good work.  Click the button below or go to www.shawhrconsulting.com/covid to download program materials.

All program materials should be considered samples and should not be acted on without legal advice. Organizations are encouraged to contact their legal counsel prior to relying on any materials in this program.

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