Newest Answers to ‘FAQs’ from the EEOC on Reasonable Accommodations and Undue Burden During the COVID-19 Pandemic

On April 17, 2020, the Equal Employment Opportunity Commission (EEOC) updated its Frequently Asked Questions (FAQs) with regard to requests for reasonable accommodations, including temporary accommodations, the interactive process, and how an employer can establish an undue hardship defense in the age of COVID-19.  The new FAQs also begin to address what, if anything, employers should be considering when workers return to the jobsite.  The FAQs leave some room for interpretation, so stay tuned for the EEOC’s next round.  For now, here is what the EEOC has said: 

1. During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may an employer still request information to determine if the condition is a disability?

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a “disability” as defined by the Americans with Disabilities Act (ADA) (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment).

2. During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed? 

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other.

Possible questions for the employee may 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, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).

3. If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? 

Yes.  Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process,” and grant the request.  In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change.  This may result in more requests for short-term accommodations. Employers may wish to adapt the interactive process – and devise end dates for the accommodation – to suit changing circumstances based on public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate).

Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts her at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.

4. May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace? 

Yes.  Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens.  Employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.

5. An employer requires returning workers to wear personal protective gear and engage in infection control practices.  Some employees ask for accommodations due to a need for modified protective gear.  Must an employer grant these requests?

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).  However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.  

6. Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship? 

Yes.  An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

7. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” during the COVID-19 pandemic? 

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace.  For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking.  Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.

If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

8. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant expense” during the COVID-19 pandemic? 

Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components).  But, the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.

Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).  These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.  For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.

9. Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace?  

Yes.  An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information.  It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination.  An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

10. As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace? 

The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity.  Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

Direct threat is to be determined based on the best available objective medical evidence.  The guidance from CDC or other public health authorities is such evidence.  Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.

For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace.  Similarly, the CDC recently posted information on return by certain types of critical workers.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

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This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Amy Dieterich, Jordan Payne Hay, and James F. Pross are employment and labor law attorneys; others at the firm handle business and other matters.