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COVID-19 and the Americans with Disabilities Act

by | Aug 31, 2021

August 31, 2021

Employers in Utah and throughout our Country are faced with new and unique questions concerning COVID-19 and the workplace. For example, an increasing amount of employees are requesting to work from home due to potential COVID-19 exposure, particularly with the new infectious Delta Variant. Some employees are seeking remote work accommodations under the Americans with Disabilities Act (“ADA”). Employees with compromised immune systems, anxiety, or other stress disorders may qualify as disabled under the ADA and may seek workplace accommodations, such as remote work, during the COVID-19 Pandemic. This raises a few important questions for the employer to consider while engaging in the interactive process to analyze appropriate remote work accommodations: (1) Is the company permitted to require the employee to obtain a medical examination to assess the disability and need for accommodation?, and (2) When does the Undue Hardship exception apply for a remote work request?

Can an employer require an employee to undergo a medical examination?

“A covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions.” Generally, a disability-related inquiry or medical examination of an employee may be “job-related and consistent with business necessity” when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition . . . Disability-related inquiries and medical examinations that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious also may be job-related and consistent with business necessity.”

With respect to a remote work accommodation, the Employer has the right to understand the nature of the disability to assess whether working in person at the office poses a threat to the employee or impairs the employee’s ability to perform the essential functions of the job. Requesting the employee undergo a medical examination for this purpose is consistent with the purposes of the ADA.

Could remote work cause an undue burden on the Company?

The employer bears the burden of proving that a denied accommodation poses undue hardship. Generally, an “undue hardship” is an accommodation that poses significant difficulty, expense, or disruption in operations in relation to the size of the employer, resources available, and the nature of the operation. An employer is not required to provide the reasonable accommodation where the accommodation causes an undue hardship or burden.

The Equal Employment Opportunity Commission (EEOC) specifically addresses whether an employer must allow an employee with a disability to work at home as a reasonable accommodation in the context of an undue hardship analysis. An employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, but only if this accommodation would be effective and would not cause an undue hardship.

Whether this accommodation is effective will depend on whether the essential functions of the position can be performed at home. There are certain jobs in which the essential functions can only be performed at the work site — e.g., food server, or cashier in a store. For such jobs, allowing an employee to work at home is not effective because it does not enable an employee to perform his/her essential functions. Certain considerations may be critical in determining whether a job can be effectively performed at home, including (but not limited to) the employer’s ability to adequately supervise the employee and the employee’s need to work with certain equipment or tools that cannot be replicated at home. In contrast, employees may be able to perform the essential functions of certain types of jobs at home (e.g., telemarketer, proofreader). For these types of jobs, an employer may deny a request to work at home if it can show that another accommodation would be effective or if working at home will cause undue hardship.

For more information about the ADA and COVID-19, or other employment law matters, please contact employment counsel at Clyde Snow.

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