Accommodations in the Time of COVID

TLNT

Nancy Gunzenhauser Popper, Associate in the Employment, Labor & Workforce Management practice, in the firm’s New York office, authored an article in TLNT, titled “Accommodations in the Time of COVID.”

Following is an excerpt:

As employers contemplate return to work plans, the number of requests for accommodations — namely to continue to work remotely for those employees whose job functions permit telecommuting — are skyrocketing.

Legal Obligation

Several laws address employers providing reasonable accommodations to employees to perform the essential functions of their jobs, provided the accommodation does not cause an undue hardship on the employer. At the federal level, employers may be required to accommodate employees on the basis of a disability (Americans with Disabilities Act (ADA), pregnancy (Pregnancy Discrimination Act), or religion (Title VII of the Civil Rights Act). States and cities may further require additional accommodations, including on the basis of care responsibilities.

Federal Guidance

The Centers for Disease Control and Prevention (CDC), as well as the reopening plans from the White House, suggest that employers should consider providing accommodations to “vulnerable employees,” defined as those who are at increased risk for COVID-19. The CDC identifies this population as “older adults” and people with “underlying medical conditions.”

While those with such medical conditions may be entitled to reasonable accommodations on the basis of a disability under the ADA and similar state/local laws, the guidance that older adults may be more at risk does not directly correlate to any legal entitlement to an accommodation. The Equal Employment Opportunity Commission (EEOC) has issued technical assistance for employers titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” on the provision of reasonable accommodations during the COVID-19 pandemic. Notably, even though the CDC has raised concerns about risk to older adults, the EEOC makes clear that employees are not entitled to a reasonable accommodation on the basis of age under the Age Discrimination in Employment Act.

Further, the federal government has encouraged remote work or telework, even through its Families First Coronavirus Response Act (FFCRA), in limiting the ability to receive such paid leave if the employee is otherwise able to telework.