From the desk of Tracie DeFreitas, M.S., Principal Consultant — ADA Specialist
COVID-19 has disrupted modern 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. Many people are affected by these changes, leading some to request work-related adjustments. This includes some individuals with disabilities who face unique challenges in a pandemic situation. The Americans with Disabilities Act (ADA) gives qualified workers with disabilities the right to reasonable accommodations to address disability-related limitations at work, absent undue hardship. JAN experts field a broad range of inquiries about ADA accommodations, but as it relates to the pandemic, many questions are about whether and how to engage in the ADA interactive process; accommodating individuals with disabilities who are at higher risk for developing serious illness from COVID-19; limiting the risk of exposure in the workplace; telework accommodations; vaccination exception requests; and many other COVID-19 related accommodation issues.
It can be complicated untangling the web of intersecting federal laws and intermingling public health and safety guidelines issued in response to the pandemic. State and local orders and sick leave laws further complicate compliance efforts. To address many COVID-19 related disability-employment issues, JAN uses information and resources provided by federal government and public health 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). For JAN resources on various COVID-19 related ADA and accommodation issues, visit Coronavirus Disease 2019 (COVID-19).
The JAN service offers accommodation solutions and guidance on processing COVID-19 related accommodation requests. The following information may help employers determine whether an employee is entitled to a reasonable accommodation. For further assistance, contact JAN.
Recognizing an ADA Accommodation Request
When the basis for a requested work-related adjustment is an employee’s own medical condition, associated limitations, and COVID-19 related circumstances, this can trigger an employer’s responsibility to engage in the interactive accommodation process to determine whether the ADA applies. This process involves gathering reasonable information about an employee’s medical condition and need for accommodation.
Generally, the ADA interactive process is the same during a pandemic as it is during pre-pandemic times: recognize and acknowledge the request; gather sufficient information, if necessary; explore, choose, implement, and monitor accommodations. Some details may be needed to choose and implement an appropriate accommodation. For example, if it’s not otherwise obvious, an employer may request information about the individual’s disability and what work-related adjustment is needed to address their limitations.
Due to the pandemic, many people are asking to continue working at home as an accommodation or to isolate from others if they must return to the workplace. Some people are asking for an exception to a mandatory vaccination requirement. These requests are being made for various reasons; some are due to a disability, others are not. For example, employees who are requesting these kinds of adjustments may include individuals with disabilities, individuals who are pregnant, older workers, caregivers of individuals with disabilities or young children, or people who have objections based on firmly held religious beliefs. To be entitled to receive a reasonable accommodation under the ADA, an employee must have an ADA disability and be requesting an accommodation for a reason related to that disability. Of course, employers are free to provide accommodations even if someone doesn’t meet the ADA definition of disability.
The following questions may help employers recognize when someone is requesting an ADA accommodation during the pandemic:
Is the individual requesting an accommodation because they have COVID-19 or are experiencing ongoing effects or lingering symptoms from COVID-19 (i.e., Long COVID)?
There is no list of medical conditions that will always meet the ADA definition of disability and each case is determined based on an individual’s specific limitations. It is possible that being infected with COVID-19 or having Long COVID may meet the ADA definition of disability, depending on the specific facts about an individual’s medical condition. A person infected with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities” (WYSK, 2020). The Equal Employment Opportunity Commission (EEOC) shares further guidance on COVID-19 and Long COVID as an ADA disability in What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, section N. For JAN resources on this topic, see Accommodating Employees with COVID-19-Related Symptoms and COVID-19 Long Haulers and the ADA.
Is the individual requesting an accommodation because they are at higher risk for developing serious illness from COVID-19, if infected?
People with certain medical conditions are at higher risk for developing serious illness from COVID-19 and may request ADA accommodations to safely work. Also, the CDC notes that the risk of severe COVID-19 increases with the number of underlying medical conditions a person has (CDC, 2021). When an individual with an underlying medical condition requests an accommodation to limit the risk of exposure to COVID-19, if the medical condition and/or need for accommodation is not obvious or already known, the ADA allows the employer to ask for medical information. Information provided by an appropriate medical professional, and also the CDC, may be useful. This information can help the employer determine if the individual has an ADA disability and whether there is a reasonable accommodation that can be provided. For more information, see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, section G.
Is the individual requesting an accommodation because of a mental health condition that is exacerbated by the pandemic?
People with certain mental health conditions, whether the condition existed prior to the pandemic or developed during the pandemic, may experience an exacerbation of symptoms brought on by the pandemic and may request ADA accommodations. This can include individuals with generalized anxiety or panic disorder, post-traumatic stress disorder (PTSD), major depressive disorder, obsessive compulsive disorder, and other mental health conditions. Symptoms may be significantly limiting and may affect working and meeting performance expectations. Accommodations may help address various limitations, such as extreme fear of being exposed to or infected with COVID-19 in the workplace or while commuting; difficulty focusing, concentrating, managing time, or handling inordinate stress; and even difficulty teleworking, due to feeling isolated. For more information, see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, section D.
For JAN resources on this topic, see Supporting Employees with Mental Health and Cognitive Conditions While Teleworking and COVID-19, Stress, and Mental Health Conditions.
Is the individual requesting a change at work, to work from home, or to use leave to limit the risk of exposure to COVID-19, but does not have an ADA disability?
If the individual does not have an ADA disability and is only seeking to limit the risk of exposure to COVID-19, then this is not an ADA issue. However, while this situation is not one that would fall under the ADA, employers may still make work-related adjustments and offer flexible work arrangements to limit the risk of exposure to COVID-19. This can include making changes to ordinary business operations and allowing employees to work at home, wear a mask, or take leave.
Is the individual requesting an accommodation to limit the risk of exposure to COVID-19 due to pregnancy?
According to the EEOC, employees who are pregnant may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work (WYSK, 2020). Two federal employment laws may trigger the duty to accommodate employees based on pregnancy; Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act (PDA), and the ADA when the individual has a pregnancy-related medical condition that is a disability. For more information, see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, section J.
Also, 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 the discretion to make reasonable work-related adjustments to enable employees to safely work during the pandemic.
Is the individual requesting an accommodation to avoid the risk of exposure to COVID-19 because they are a caregiver or housemate of an individual with a disability who is at higher risk for developing serious illness from COVID-19?
Caregivers of individuals with disabilities are not entitled to receive job accommodations under the employment provisions of the federal ADA, but alternative federal, state, or local requirements may apply. For more on the topic of caregivers and the ADA, see the JAN resource Accommodation and Compliance: Caregivers. In qualifying situations, those with caregiving responsibilities may be entitled to leave under the federal Family and Medical Leave Act (FMLA). To learn more, see COVID-19 and the Family and Medical Leave Act Questions and Answers.
Is the individual requesting to work at home or other accommodations to limit 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 becoming seriously ill from COVID-19, but these individuals will not qualify to receive accommodations under the federal ADA on the basis of age alone. The federal Age Discrimination in Employment Act (ADEA) does protect workers over the age of 40 from age-related workplace discrimination, including being involuntarily excluded from the workplace, but the law does not require employers to accommodate workers based on age. Keep in mind, if other comparable workers are allowed flexible work arrangements, like telework, to limit exposure to COVID-19, older workers should not be treated differently based on age. Employers may provide flexibility to workers age 65 and older regardless of federal requirement. For more information, see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, section H.
Is the individual requesting an accommodation for a religious reason?
The ADA does not require employers to provide accommodations for religious reasons. Another federal law, Title VII of the Civil Rights Act, grants applicants and employees the right to request religious accommodations when a work-related requirement conflicts with sincerely held religious beliefs, practices, or observances. Title VII also prohibits employment discrimination based on religion. For more information, see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, particularly section L as it relates to vaccination requirements, or contact the EEOC.
Workplace accommodation issues will continue to evolve with the pandemic. Recognizing when an employee is requesting work-related adjustments due to a disability-related reason is an important step toward engaging in a good faith effort to provide reasonable accommodations under the ADA. For additional information, contact JAN.