Photo / COURTESY of Preti Flaherty
Michael Messerschmidt is chair of Preti Flaherty’s employment law group.
Updated: May 2, 2022
How To
How to prepare for an increase in requests for accommodation
By Michael Messerschmidt
The pandemic has created a multitude of challenges for employers. As more employees return to the office in 2022 — whether full-time or on a hybrid schedule — employers will face difficult compliance questions and, most likely, increased accommodation requests under the Americans with Disabilities Act. How should employers prepare for these requests?
Accommodation requests are likely to come in three distinct areas: telework, disability claims related to long-haul COVID-19, and vaccination policies.
What you need to know
Requests for telework as a reasonable accommodation: It’s likely that employers will see an increase in requests to telework as a reasonable accommodation. The Equal Employment Opportunity Commission says that telework/work at home may be a form of reasonable accommodation under the ADA because changing the location where work is performed may be a form of modifying a workplace policy.
Before COVID-19, employers would argue that an employee’s physical presence in the workplace was an essential job function when faced with telework reasonable accommodation requests, but after nearly two years of remote work, it may be difficult for employers to continue to argue this. The pandemic has changed how and where many Americans work. While employers that allowed teleworking during the pandemic do not have to continue allowing it once worksites reopen, employers must still engage in the interactive process when faced with such accommodation requests.
Long-haul COVID-19 is a new disability: Due to the pandemic, the Department of Justice, the Department of Health and Human Services, and the EEOC have all stated that “long-haul” COVID-19 may qualify as a disability. Long-haul COVID-19 involves symptoms that can last for weeks or months following infection. These symptoms include, but are not limited to, tiredness, fatigue, difficulty thinking or concentrating, shortness of breath, headache, dizziness upon standing, heart palpitations, chest pain, cough, joint or muscle pain, depression or anxiety, fever, and loss of taste or smell. Further EEOC guidance is forthcoming, but employers should be prepared for accommodation requests for long-haul COVID-19 substantially limiting one or more of the employee’s major life activities.
Vaccine mandates and exemption policies: Court rulings to date confirm that employers can lawfully mandate vaccines, as long as they provide exemptions for approved reasons of religion and disability. Disputes over employer exemption policies and exemption request decisions have infiltrated the courts and will continue to do so in 2022. When faced with exemption requests, employers should still be engaging in an interactive process to explore the reasons behind the request.
What you can do
No matter the cause, employers can expect to see an increase in the volume of accommodation requests in the coming months. Now is the time to ensure you and your HR team are prepared. While each employee and each request should be addressed individually, a few basic tips should help you through most circumstances:
Employers should ensure they have established policies and procedures to evaluate each accommodation request and assess the extent of the hardship, if any, the accommodation may impose on the operation of the business.
When responding to reasonable accommodation requests under the ADA, employers must consider them on an individualized, case-by-case basis and engage in an interactive dialogue with the requestor.
Employers do not have to grant accommodation requests that would require significant difficulty or expense.
Your existing procedures may suffice but, like a stress test, this anticipated uptick in activity will expose any areas of legal vulnerability. Seek counsel from an experienced employment attorney to review your policies and advise you on responding to challenging requests.
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