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Engaging in the Interactive Process During the COVID-19 Pandemic

Laying out the interactive process during COVID-19

From the desk of Tracie DeFreitas, M.S., Program Leader, Director of Training and Outreach

The information in this article is outdated. For updated information, see Recognizing an ADA Accommodation Request During the Pandemic

COVID-19 has disrupted modern American life in unprecedented ways – affecting how we live and take care of our families, how we interact with others in our communities, and how we work and do business. The JAN organization has had to change the way we work and serve our customers as part of the effort to slow the spread of COVID-19 in our community. We’re still providing trusted practical guidance on workplace accommodations and technical assistance on title I of the Americans with Disabilities Act (ADA) via convenient on-line live JAN chat and JAN On Demand e-mail forms of communication. We’re still here for you and we’re working hard to share practical information to enable employers and individuals with disabilities to address the many workplace issues that are developing in response to this pandemic.

COVID-19-related workplace issues vary widely. The JAN service is receiving many inquiries related to accommodating individuals with disabilities under the ADA during a pandemic situation. Our experts are fielding inquiries about: accommodating individuals with disabilities who are at higher risk for developing complications from the coronavirus; strategies for limiting the risk of exposure to the coronavirus in the workplace, working at home, and accessing leave; and the federal Families First Coronavirus Response Act (FFCRA). To address these and other COVID-19-related issues, JAN is using information and resources provided by federal government authorities, including the Equal Employment Opportunity Commission (EEOC), U.S. Department of Labor (DOL), Occupational Safety and Health Administration (OSHA), and the Centers for Disease Control and Prevention (CDC).

It’s complicated untangling the web of intersecting federal workplace laws, along with the intermingling public health and safety guidelines issued in response to the COVID-19 pandemic. The flurry of states and localities issuing coronavirus-related stay-at-home or shelter-in-place orders and paid sick leave laws further complicates workplace compliance efforts during this pandemic situation. Employers that are implementing ADA compliance strategies to navigate the impact of COVID-19 in the workplace are encouraged to review the EEOC guidance on Pandemic Preparedness in the Workplace and the ADA. Also, JAN is developing information and providing resources on various COVID-19-related ADA and accommodation issues. Visit our Coronavirus Disease 2019 (COVID-19) resource page for information and updates.

During this COVID-19 pandemic situation, everyone has a responsibility to try to slow the spread of the virus. There are work-related strategies and accommodations that can have a positive impact. Employers are encouraged to consider practical ways to keep employees working and safe during this pandemic. The JAN service offers practical accommodation solutions and ADA guidance on managing COVID-19-related accommodation requests. The following information may help employers engage in the interactive accommodation process during this unprecedented time.

Engaging in the Interactive Accommodation Process

When an individual requests a change at work for a reason related to the COVID-19 pandemic, an ADA covered employer is expected to initiate the interactive process to gather information and establish whether the individual has the right to receive an accommodation, for a disability-related reason. Engaging in the interactive process is one way for employers to untangle the web of federal workplace requirements during a pandemic situation. For the most part, the interactive process looks the same as it does during ordinary times: recognize the accommodation request; gather information; explore, choose, implement, and monitor accommodations. The second step of the process, gathering information, will usually yield the information needed to determine if the ADA applies, or if perhaps a different federal law applies. When gathering information, the employer must recognize who is requesting accommodation to know if the ADA applies.

Recognize Who is Seeking Accommodation Under the ADA

This COVID-19 pandemic has led to many changes in the way we work and do business. For many people, this means working at home due to a state issued stay-at-home order. For others, it’s changed how they engage with people in the workplace. In response to COVID-19, many people are requesting to work at home as an accommodation, to isolate from others in the workplace, or to take leave. These requests are being made for various reasons and so an employer must recognize who is requesting the accommodation and why, in order to determine if the ADA applies. For example, employees who are requesting these kinds of workplace changes include individuals with and without disabilities, individuals who are pregnant, older workers, and caregivers of individuals with disabilities or young children. To apply the ADA, an employer must know that the individual who is requesting accommodation is doing so for their own disability-related reason. The following questions will be useful in navigating this step of the interactive process:

Is the individual requesting an accommodation due to symptoms associated with COVID-19, or because they have an impairment that puts them at higher risk for developing complications from COVID-19?

  • If yes, and if the impairment and/or need for accommodation is not obvious, the employer may gather information about the individual’s underlying impairment or COVID-19-related symptoms and the need for accommodation in order to establish the individual’s right to receive accommodation under the ADA. During the current COVID-19 pandemic, employers are encouraged to consider various means for obtaining disability-related ADA information to establish the right to receive accommodation. JAN offers practical guidance on obtaining disability-related information for ADA purposes during the COVID-19 pandemic in the resource The ADA and Managing Reasonable Accommodation Requests from Employees with Disabilities in Response to COVID-19.

Is the individual requesting a change at work, to work from home, or to use leave to avoid the risk of exposure to COVID-19 in the workplace, but does not have an impairment?

  • If the individual does not have an impairment and is only seeking to avoid the risk of exposure to COVID-19, then this is not an ADA issue. However, while this particular situation is not one that would fall under the ADA, employers are encouraged to implement measures to slow the spread of COVID-19. This can include making changes to ordinary business operations and allowing employees to work at home or take leave. Many state governments have implemented stay-at-home orders that may require employers to allow employees to telework, if feasible. Also, the CDC offers a resource, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), that employers may find useful for responding to the impact of the COVID-19 in the workplace.

Is the individual requesting an accommodation to avoid the risk of exposure to COVID-19 due to pregnancy?

  • The CDC does include people who are pregnant among those who might be at higher risk of developing severe illness from COVID-19. For more information, see the CDC resource Information about Coronavirus Disease 2019: Pregnancy & Breastfeeding. While pregnancy alone is not an impairment under the federal ADA, workers who are pregnant might be able to request accommodations to avoid the risk of exposure to COVID-19 under the federal Pregnancy Discrimination Act (PDA). The PDA is a federal law that protects pregnant workers from discrimination and requires covered employers to make job-related modifications for pregnant employees. An employer may need to provide a needed adjustment to an employee who is pregnant that the employer provides to other employees. Of course, an individual who is pregnant who also has a pregnancy-related impairment that is a disability under the ADA may be entitled to accommodation under the ADA. Some pregnancy-related conditions are disabilities that an employer may need to accommodate under the ADA. Additionally, various state and local laws may require accommodations and include leave rights for workers who are pregnant. Contact your state human rights agency for further information. PDA and ADA aside, employers do have discretion to make modifications that will keep employees safe during this COVID-19 pandemic.

Is the individual requesting to work at home to avoid the risk of exposure to COVID-19 due to being over the age of 65?

  • According to the CDC, people 65 years and older are at higher risk for developing complications from COVID-19, but these individuals will not qualify to receive accommodations under the federal ADA solely on the basis of age. There is a federal law, the Age Discrimination in Employment Act (ADEA), that does protect older workers from age-related workplace discrimination, but the law does not require employers to accommodate workers on the basis of age. However, in the EEOC webinar COVID-19 “Ask the EEOC” the EEOC reminds employers that if other comparable workers are allowed to telework in response to the COVID-19 pandemic, older workers should not be treated differently based on their age. 

Is the individual requesting an accommodation to avoid the risk of exposure to COVID-19 because they are a caregiver of an individual who is at higher risk for developing complications from COVID-19?

Is there an OSHA standard that requires employers to make modifications for employees, in general, to limit the risk of occupational exposure to COVID-19?

  • According to OSHA, there is no specific OSHA standard covering COVID-19. However, some OSHA requirements may apply to preventing occupational exposure, such as OSHA's Personal Protective Equipment (PPE) standards and the General Duty Clause. For information about OSHA requirements, see OSHA’s COVID-19-related standards page and Guidance on Preparing Workplaces for COVID-19.

These unprecedented times are certainly requiring workplace changes that are affecting millions of people across the country. Employers are doing their best to follow the workplace rules we know, and to engage in the interactive process under the ADA, but the COVID-19 pandemic is compelling everyone to be more flexible and resourceful in the way we work and do business. Let’s all work together to implement solutions to keep people, including individuals with disabilities, working.


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