Disability and Reasonable Accommodations under the American with Disabilities Act & the Fair Employment and Housing Act

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The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) protect disabled employees from discrimination, harassment and retaliation. The acts require employers to reasonably accommodate known disabilities of their employees to enable them to perform the essential functions of their jobs. The accommodations are required unless their implementation would cause undue hardship to the employer. Employees who associate with someone who has a disability are protected too.

The ADA applies to all employers with 15 or more employees. The FEHA applies to all California employers with five or more employees.

California law is broader than the ADA, and employers must follow the law that provides the greatest benefit to employees.

Employees who contract COVID-19 may be considered disabled if their condition meets certain criteria and would be subject to the protections provided by the acts. In light of associational discrimination, employees might be protected if they are caring for a family member with the illness. Employers must consider their obligations under the ADA and the FEHA when making decisions about employees' return-to-work and leave requests, and requests for accommodation.

Detailed discussions of the FEHA and the ADA can (and do!) fill volumes. The legal issues and applications likewise are vast, often nearly incomprehensible and beyond the scope of this guide. So what follows is a discussion of the most fundamental elements of the laws, and, in the next section, answers to the most frequently asked questions about them. We anticipate expanding the discussion frequently.

For more information, contact us and consult https://www.dol.gov/general/topic/disability/ada and https://www.dfeh.ca.gov/employment/. Many of the issues also are covered extensively in "Sullivan on Comp Chapter 11: Return To Work .

DISABILITY DEFINED

In California, a person is considered disabled if she or he:

1. has a physical or mental impairment that limits one or more of the major life activities;
2. has a record of an impairment;
3. is regarded as having an impairment;
4. is regarded or treated by the employer as having a condition that is not presently disabling, but might become a disability; and/or
5. has a health impairment that requires special education or related services.

The FEHA protects people with transitory impairments whose nature and severity limit a major life activity. COVID-19 is believed to be a transitory illness that might fall within the act’s definition of disability, if it limits the major life activity of working.

According to the FEHA, the term “major life activities” is to be broadly construed and includes physical, mental, social and employment-related activities.

Given California’s stated intent to broadly define disability, employers should seek counsel when determining the disability status of an employee with COVID-19 who is unable to work.

RECORD OR HISTORY OF DISABILITY

In addition to protecting individuals who have known disabilities, the FEHA prohibits discriminating against individuals with a “record of” a disability, who are “regarded as” disabled, who are “perceived as” disabled and who are “perceived as potentially” disabled.

California’s disability regulations state that a “record or history of disability” includes previously having, or being misclassified as having, a record or history of a mental or physical disability of which the employer or other covered entity is aware..

Employees who have recovered from COVID-19, were exposed to it and self-quarantined or had a family member with the illness, are protected under the FEHA even if the illness doesn’t reach the level of a disability.

REASONABLE ACCOMMODATION REQUIREMENTS

Most employers are familiar with the legal requirement to reasonably accommodate employees with known disabilities unless the accommodation would cause an undue hardship to the business. Accommodating disabilities has become a little more challenging in the pandemic as workers are furloughed, teleworking, working staggered shifts or otherwise performing their job duties in a location or a manner different than before the pandemic.

The EEOC has updated its guidance to address accommodation and return to work issues. The guidance authorizes employers to initiate the process of identifying possible limitations and accommodations even before employees return to the worksite. The guidance also recognizes and approves the guidance from the CDC that employers will likely need to continue screening employees for COVID-19 related symptoms even after the stay at home order has been lifted. Return to work screening and testing is covered extensively in the Return to Work section of this guide.

Once an employee requests an accommodation the employer may request information from the employee to determine if the condition is a disability and why an accommodation is needed, even if the employee is temporarily teleworking during the pandemic. Possible questions an employer may ask an employee include:

   1.   How the disability creates a limitation;
   2.   How the requested accommodation will effectively address the limitation;
   3.   Whether another form of accommodation could effectively address the issue;
   4.   How a proposed accommodation would enable the employee to continue providing the essential functions of their positions; and
   5.   Whether the employee will need a reasonable accommodation when returned to work.

Employers are advised to request medical documentation of the disability just as it would in a non-pandemic environment. If it's not possible to provide medical documentation given the pandemic or, if there is some urgency in providing the accommodation, the employer may offer a temporary, interim or trial accommodation. In doing so the employer should consider end dates for the temporary accommodation and be flexible with accommodations because, as government restrictions change, or are partially or fully lifted, the need for accommodations may also change.

An interim or temporary accommodation may be helpful where the requested accommodation would provide protection an employee may need due to a pre-existing disability that puts the employee at greater risk during the pandemic. It could also help employees whose disabilities are exacerbated during the pandemic.

Practice Tip: Put all discussions and agreements with employees in writing, including an end date if the accommodation is to be temporary. If the employee requests an extension employers must seriously consider the request especially if conditions have not changed. Always require a medical certification even if you agree to grant the accommodation on a temporary basis pending receipt of the medical certification as this will avoid confusion later.

UNDUE HARDSHIP IN A PANDEMIC

It is well known that employers are not required to provide a reasonable accommodation to an employee if doing so would cause an undue hardship to the business. The EEOC guidance states that the pandemic may create an undue hardship for the employer when, absent the pandemic, the accommodation would not be an undue hardship. For example, it may be more difficult to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for teleworking employees. It may also be more difficult to provide employees with temporary assignments, to remove marginal job functions, or to hire temporary employees. If the accommodation poses an undue hardship employer and employees must continue to examine reasonable options that does not pose the same type of problems.

The loss of some or all of the employer's revenue because of the pandemic is a relevant consideration. Usually the cost of a particular accommodation is not significant enough to rise to the level of an undue hardship but the EEOC recognizes in the current environment cost may cause an undue hardship. Employers should be wary of outright rejecting accommodation requests because of cost and should consider the businesses particular financial situation, the length of time the employee may need the accommodation, and whether it can temporarily provide alternate accommodation until the governmental orders are lifted and business returns to a more normal volume.

Practice Tip:If you reject an accommodation request because it poses an undue hardship always document why it poses an undue hardship. Provide financial data and other pertinent factual information supporting the undue hardship decision. Proving an accommodation caused an undue hardship is a high burden and will require factual and current financial information.

To read the entire EEOC guidance see: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

SEE ALSO

• California Resources: Unemployment and Disability Insurance, Paid Family Leave, Paid Sick Leave
• FAQs: Disability and Reasonable Accommodations

REFERENCES

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< City and County Orders Applicable to Large Employers	Table of Contents	FAQs: Disability and Reasonable Accommodations >