COVID-19 AND ADA REASONABLE ACCOMMODATIONS

Question of the Week

WEEK 8

Question:

We didn’t require medical documentation earlier this year for many employees to work from home because of COVID-19 and for a personal medical condition.  Can we now require an employee to provide documentation to continue to support a work from home accommodation, and if so, what can be required?  What if we don’t get the clarification requested? 

Answer:

Yes.  Many employers did not require medical documentation and are now reassessing accommodations based on current business needs.  Make sure you are reviewing all of your accommodation requests regarding COVID-19 collectively.  You can’t require documentation of one employee, but not another.

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).

Early on in the pandemic, many providers were not seeing patients or responding to questionnaires.  Today, we are many months into the pandemic and health care providers are providing reasonable medical documentation and will respond to questionnaires. Consider providing employees with a brief 2-week temporary accommodation, as requested and without documentation, but advise the employee that if the questionnaire is not returned, this temporary accommodation will end (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 they have –this is not FFCRA leave) 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, Forms and Medical Questionnaire
• Flowchart
• FAQ

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.