From the desk of Tracie DeFreitas, M.S., Principal Consultant — ADA Specialist
One year has passed since the COVID-19 pandemic forced businesses to abandon a conventional perspective on where, when, and how work is performed. While figuring out how to operate in the middle of a public health crisis that prompted stay-at-home orders and mask mandates, employers continued to be responsible for complying with a wide landscape of complex federal employment laws. Laws like the Americans with Disabilities Act (ADA), Rehabilitation Act, Pregnancy Discrimination Act (PDA), Family and Medical Leave Act (FMLA), and others, impacted decisions made about the manner in which employees performed job duties when a disability, medical condition, or pregnancy affected ability to work. To complicate the situation further, various state COVID-19 related requirements and paid sick leave laws kept rolling out as the pandemic situation evolved, requiring employers to consider state law interplay. Employers had to act rapidly to respond to the changing circumstances and those responsible for processing job accommodation requests made quick decisions about policy and practice modifications to keep employees safe and businesses operating.
The pandemic is not over and accommodation and leave experts, human resources professionals, and managers and supervisors, continue to do their best to meet extraordinary workplace challenges during an unprecedented time. We’ve learned a lot from the pandemic experience – what not to take for granted, how to be safe, the significance of human interaction, and that our nation’s businesses and workers are highly capable of adapting when called to do so.
Throughout the pandemic, the JAN staff has consulted with thousands of businesses, government employers, and individuals with medical conditions that have been impacted by circumstances linked to COVID-19. This experience has taught us many lessons about engaging in the ADA interactive process and exploring new ways to accommodate workers in a pandemic. Several lessons learned were shared during the JAN Webcast Series presentation titled ADA and Accommodation Lessons Learned: COVID-19 Edition. Moving forward, many lessons will likely inform accommodation policies and practices and the future of work for everyone, but especially workers with medical conditions.
Below is a short list of ADA and accommodation lessons learned. For more detailed information, review the archived presentation mentioned above or contact JAN.
Lesson 1: Recognize when the ADA is triggered and respond accordingly.
Early in the pandemic, many employers either treated all COVID-19 work-related adjustment requests as ADA accommodations or approved/denied adjustments without following a consistent, coordinated process. Some employers applied an existing reasonable accommodation procedure to process any COVID-19 related request because they didn’t know what else to do. Others had to act quickly and didn’t have time to sort out the basis for each individual request. In some cases, the substantial volume of requests led to manager-level decisions, resulting in a lack of consistency across the organization about whether and when medical information was gathered and what adjustments were approved. Also, communication with personnel that ordinarily handle these requests broke down and this created silos.
Requests for work-related adjustments were submitted by workers with medical conditions or who were pregnant, caregivers of a person with a disability, a spouse of someone who was pregnant, parents with childcare needs, and workers at risk for severe illness from COVID-19 due to age or who had family members in this at risk group who they were trying to protect. Employers did their best to keep people safe and businesses surviving during a challenging time. But some adjustments were made without recognizing whether the ADA or other statues applied.
The lesson learned from this experience is that recognizing when the ADA is triggered is central to ADA compliance. When the basis for a requested work-related adjustment is an employee’s own medical condition, associated limitations, and COVID-19 linked circumstances, this triggers the ADA and the responsibility to engage in the interactive accommodation process. Not every accommodation begins with a capital A. Sometimes work-related adjustments are made for reasons that fall outside of the realm of the ADA (e.g., in compliance with other statutes and/or internal policies), but non-ADA requests for work-related adjustments should not be treated or labeled as ADA accommodations with a capital A. Accommodations that fall under the ADA require an interactive process, following the ADA rules, and making sure everything is documented appropriately. It is important to be flexible and accommodating during the pandemic, but employers still need to keep ADA compliance in mind. [Credit goes to Teri Webber, Spring Consulting Group, for sharing the capital A concept.]
Lesson 2: It might be necessary to adapt the interactive process to shorten or forgo the collection of medical information in a pandemic situation.
The ADA medical inquiry rules didn’t change with the onset of the COVID-19 pandemic but related circumstances did impact whether, when, and what medical information was gathered for ADA purposes. Employers found it challenging to keep up with the volume of accommodation requests, requiring supervisors and managers to step in and sometimes make accommodation decisions without gathering medical information. Workers with medical conditions and disabilities found it difficult to obtain medical information to support accommodation requests due to limited access to an overloaded health care system, fear of contracting COVID-19, and stay-at-home orders.
The lesson learned here is that it was sometimes necessary to shorten or forgo the collection of medical information, to adapt the ADA interactive process due to the pandemic. Pragmatic and flexible strategies were necessary to provide ADA accommodations. For example, some strategies included requiring only limited medical information, accepting different forms of medical documentation than ordinarily required, or choosing not to collect medical information at all to provide a reasonable accommodation as quickly as possible. This practice is acceptable but there should be some consistency about whether, when, and what information is collected and how the process is adapted.
The Equal Employment Opportunity Commission (EEOC) technical assistance resource What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws supports the idea that the interactive process might need to be adapted in a pandemic situation. This can include shortening the exchange of medical information or forgoing it altogether. This does not mean an employer cannot collect sufficient ADA information later, if needed.
Lesson 3: Job restructuring might include temporarily changing whether or how essential functions are performed but these functions can be restored when the employer chooses.
Jobs changed over the past year. COVID-19 stay-at-home orders forced many businesses to pivot to remote operations and/or change whether or how job duties were performed. For many jobs this included removing essential duties when necessary. Undoubtedly, most employers expected only to pause the requirement to perform essential duties, not to permanently change jobs. Some employees couldn’t be sent home, due to the nature of work, and so these types of adjustments were requested by workers with disabilities who had to limit their risk of exposure to COVID-19 for an ADA qualifying reason. When requested as an accommodation, changing where, how, or whether job duties are performed is job restructuring.
Job restructuring includes modifications such as redistributing marginal job functions that an employee is unable to perform because of a disability and altering when and/or how a function is performed. But essential job functions do not have to be removed as a form of reasonable accommodation under the ADA. Employers have always had the discretion to make this type of modification and it’s a change that is sometimes made temporarily. Temporary accommodations have become a key best practice during the pandemic. The EEOC has noted that employers might consider temporary or trial accommodations and may devise accommodation end dates to suit changing circumstances based on public health directives.
The lesson learned from this experience is that a job can be restructured to change or remove essential functions at the employer’s discretion but choosing to do this does not mean the job has been permanently changed. The requirement to perform essential functions can be reinstated when an employer chooses. For example, as workers are called to return to the workplace, if essential job duties are restored for everyone in a job category, workers with disabilities can be required to perform the essential duties, with or without reasonable accommodation. When essential duties are temporarily changed or removed for a disability-related reason, it is useful to document this accommodation decision.
Lesson 4: Return to work accommodations are not one size fits all.
Employers are doing their part to boost economic recovery by returning employees to work but the COVID-19 pandemic is not over. While many people might be eager to return to the workplace, some workers with medical conditions might have limits to entering the workplace or performing job duties due to the risk of severe illness from COVID-19 or other related circumstances. Others might not be able to return to work at all. This means that employers are receiving various types of accommodation requests to meet individual disability-related needs. For example, some workers could return safely after receiving a COVID-19 vaccination and with safety measures in place to limit the risk of exposure to the virus. Others might need to continue working at home if feasible or might request access to leave if other accommodations will not be reasonable and effective.
The lesson here is that returning employees to the workplace in the middle of a pandemic is not a one-size-fits-all accommodation situation. Don’t assume that each worker with a disability or medical condition will benefit from the same accommodations. Also measures implemented to generally protect workers might not be sufficient for those who are more likely to get severely ill from COVID-19. JAN offers several COVID-19 related accommodation and ADA resources at AskJAN.org. See Accommodation and Compliance: Coronavirus Disease 2019 (COVID-19) or contact JAN for accommodation ideas.
Lesson 5: State requirements can impact the ADA interactive process.
The final lesson to share is related to the impact of state and local requirements on the ADA interactive process. Employers have had to navigate the flurry of state and local COVID-19 related regulations, leave laws, and mask mandates. For example, some state mandates might require employers to be flexible and less aggressive in their effort to return people to the workplace, there might be restrictions on requesting medical information, and state or local laws may provide employees with additional protections beyond the ADA. To learn about state requirements, contact your state Fair Employment Practices Agency, a legal professional, or other relevant resources.
We will continue to learn many ADA and accommodation lessons from the COVID-19 pandemic. Remember, the ADA regulations have not changed because of COVID-19 but strategies for engaging in the interactive accommodation process will continue to evolve. For guidance on these lessons learned and more chat with the JAN staff at AskJAN.org.