The EEOC has again updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to include additional information regarding reasonable accommodations during the pandemic and return to work issues.

Reasonable Accommodations

If an employee requests an accommodation, the employer may still request information to determine if the employee’s condition qualifies as a disability under the ADA, if it is not obvious or already known. Employers may still engage in the interactive process and request information (including medical documentation) from employees about why accommodations are needed and what accommodation might be appropriate. Possible questions to ask the employee may include:

• How the disability creates a limitation
• How the requested accommodation will effectively address the limitation
• Whether another form of accommodation could effectively address the issue
• How a proposed accommodation will enable the employee to continue performing the essential functions of his/her position

Employers may decide to provide a particular accommodation only on a temporary basis (including by setting an end date in advance) or interim basis (such as, for example, while awaiting receipt of medical documentation), shortening the interactive process. Additionally, both employers and employees should recognize that when government restrictions associated with the pandemic change or are lifted, the need for accommodation may also change.

Employers may also ask employees with disabilities now if they will need reasonable accommodations once they return to the workplace and begin the interactive process for such future accommodations that may be requested.

Of particular note, the current circumstances of the pandemic may make it such that an accommodation may pose an undue hardship for the employer (even if the same accommodation may not have been an undue hardship for the employer before the pandemic). For example, it may be more difficult for employers to obtain certain items/equipment or to provide temporary assignments or reassign marginal job duties. Additionally, although most accommodations did not pose a significant expense to employers before the pandemic, the sudden loss of some or all of an employer’s revenue stream, as well as the decrease in discretionary funds available, is relevant for the undue burden analysis and whether an accommodation poses significant expense. Employers should be cautious, however, not to reject any accommodation simply because it costs money; there may be no-cost or low-cost options and employers must still participate in the interactive process.

Return to Work

Even as government stay-at-home orders and other restrictions are lifted, employers may continue to take employees’ temperatures and ask questions about symptoms of all those entering the workplace, as long as CDC or other public health authority guidance indicates there is an ongoing threat of the COVID-19 virus. Employers should continue to follow CDC or local public health authority guidance and may need to eliminate these practices in the future as such guidance changes.

Employers may also continue to require workers to wear personal protective gear (for example, masks and gloves) and engage in infection control practices (for example, regular hand washing and social distancing protocols). For those employees who may need a disability- or religion-related accommodation (such as non-latex gloves or modified equipment due to religious garb), employers should engage in the interactive process as they do with all other requests for accommodation.

Unlawful Harassment/Discrimination

Employers are also reminded to advise employees that it is against the law (and presumably also in violation of the employer’s policies) to harass or discriminate against coworkers based on any protected characteristic. It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or discrimination in the workplace.

By Rebecca D. Bullard, rbullard@dsda.com