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 during the pandemic as workers are furloughed, teleworking, working staggered shifts or otherwise performing their job duties in a location or a manner different from before the health crisis.

The EEOC has updated its guidance to address accommodation and return-to-work issues. Employers are authorized to initiate the process of identifying possible limitations and accommodations even before employees return to the work site. The EEOC also recognizes and approves the guidance from the CDC that employers probably will need to continue screening employees for symptoms related to COVID-19 even after the stay-at-home order has been lifted. Return-to-work screening and testing is covered extensively in the Return-to-Work Considerations 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. Questions an employer might ask an employee include:

• How does the disability create a limitation?
• How will the requested accommodation effectively address the limitation?
• Would another form of accommodation effectively address the issue?
• How would the proposed accommodation enable you to continue performing the essential functions of your job?
• Will you need accommodation when you return to the workplace?

We advise employers to request medical documentation of the disability just as they would in a nonpandemic environment. If it's not possible to get such information during the crisis, or if providing the accommodation is urgent, the employer may offer a temporary, interim or trial accommodation. If so, the employer should define end dates for the temporary measure, and be flexible with accommodations –– as government restrictions change, or are partially or fully lifted, the need for accommodations also might change.

An interim or temporary accommodation might be helpful when the requested accommodation would protect an employee against the greater risk the pandemic might pose for someone with a pre-existing disability. It also might help an employees whose disabilities are exacerbated during the pandemic.

Practice Tip: Put all discussions and agreements with employees in writing, and include an end date if the accommodation is to be temporary. If the employee requests an extension, employers must seriously consider it, 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 certification –– it 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 is that the pandemic might create such hardship for the employer if the accommodation would not be an undue hardship in the absence of a health crisis. For example, it might be more difficult to conduct a needs assessment or to acquire certain items, and delivery might be problematic, particularly for teleworking employees. Also, it might 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, the employer and the employee must continue to examine reasonable options to overcome the problems.

The loss of some or all of the employer's revenue because of the pandemic of course is a relevant consideration. Usually, the cost of a particular accommodation is not significant enough to qualify as an undue hardship, but the EEOC recognizes that it might be in the current environment. Employers should be wary of rejecting accommodation requests outright because of cost, and should consider the businesses' particular financial situation, how long the employee might 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, do not fail to document why. Provide financial data and other pertinent factual information supporting the decision. Proving that an accommodation caused an undue hardship is a heavy burden made lighter with salient facts.

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

MANAGING EMPLOYEES WHO ARE AT HIGHER RISK

Information about risk factors for severe COVID-19 disease is evolving. We still don't know a lot about how the virus is transmitted and who will suffer most when infected. Current information deems older adults and people of any age who have underlying medical conditions at greater risk of contracting severe illness from COVID-19. This population includes:

• people 65 and older
• people who live in nursing homes or long-term care facilities
• people of any age who have underlying medical conditions including:
  1. chronic lung disease or moderate-to-severe asthma
  2. serious heart conditions
  3. compromised immune systems
  4. severe obesity
  5. diabetes
  6. chronic kidney disease requiring dialysis
  7. liver disease

If an employee is in the high-risk group and makes an accommodation request, the employer should handle it as it does other accommodation requests, as discussed above. Employers should request information from doctors supporting the need for accommodation.

If, however, the employer is considering keeping the at-risk employee out of the workplace, the standard is far stricter. An employer has no right to refuse to allow an at-risk employee to return to work simply because of his or her risk status. The EEOC requires:

• application of the "direct threat" standard; and
• assessment based on reasonable medical judgment about the employee's disability using the most current medical knowledge and/or the best available objective evidence.

"Direct threat" means that there's a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations. It's a high standard that contemplates the duration of the risk, the nature and severity of the potential harm, the likelihood the potential harm will occur and the imminence of that harm.

Even if the employee's disability poses a direct threat, the employer still must explore reasonable accommodations, absent undue hardship. The goal is always to find a way for the employee to continue working and performing the essential functions of the job. Accommodations to consider include telework, leave and reassignment. Other accommodations that might eliminate a direct threat include protective gowns, gloves, masks and other PPE; erecting barriers to separate employees; and modified work schedules. Excluding an employee from the workplace is a last resort when the facts demonstrate that the worker poses a significant risk of harm to himself or herself that cannot be reduced or eliminated by reasonable accommodation.

Read EEOC guidance on managing high-risk employees here, Questions G4 and G5.

Practice Tip: If you determine that an employee poses a direct threat of harm that cannot be reasonably accommodated, ensure that your analysis is based on medical data including information from the employee's physician. Also, if the reasonable accommodations required by the employee would cause an undue hardship be sure to fully describe that hardship or the unavailability of reasonable accommodations per the employee's job description, using financial data or other factual information.

SEE ALSO

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

REFERENCES

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