In the months (or has it been years?) since the COVID-19 pandemic began in the U.S., millions of American workers have become accustomed to working from the comfort of home. Many employees would prefer to continue telecommuting rather than return to their offices and workplaces as businesses reopen. But for some employees, going back to work is not just a matter of preference; it’s a matter of life and death.
While everyone is vulnerable to the virus, some individuals are more at risk than others because of preexisting medical conditions such as immunodeficiency disorders. The Americans with Disabilities Act (ADA) covers these workers if they work at a company with 15 or more employees. The ADA imposes obligations on these employers to provide ADA-covered employees with a “reasonable accommodation” upon request to allow them to perform their jobs given their health concerns or limitations. The ADA also prohibits companies from retaliating against an employee who makes such a request.
If your disability has compelled you to request a reasonable accommodation due to COVID-19, here are two important things to know about your employment law rights.
Your Employer Can Ask You Questions About Your Disability and How It Relates to COVID-19 Risk
The Equal Employment Opportunity Commission (EEOC), which enforces workplace discrimination laws, emphasizes that companies need to remain mindful of their ongoing anti-discrimination responsibilities during the pandemic. However, the EEOC also acknowledges that employers should follow the guidance of local authorities and national health officials like the CDC regarding the health and safety of their employees. To provide clarity during an unprecedented and continuously changing situation, the EEOC has issued guidance on several ADA-related issues that relate to the pandemic, including employers’ obligations regarding reasonable accommodations. Specifically:
- If it is not obvious or already known, your employer may ask you questions or request medical documentation to determine whether you have a “disability” as defined by the ADA and to determine whether your disability necessitates an accommodation. Possible questions your employer can ask include:
- How does the disability create a limitation?
- How will the requested accommodation effectively address the limitation?
- Can another form of accommodation effectively address the issue?
- How will a proposed accommodation enable you to continue performing the “essential functions” of your position?
- If you were already receiving a reasonable accommodation before the COVID-19 pandemic, you might be entitled to an additional or altered accommodation in the absence of undue hardship.
- Your employer may ask you and other employees with disabilities to request accommodations that they believe they may need when the workplace reopens.
Sometimes, an accommodation that would not have posed an undue hardship before COVID-19 may raise one now. The conditions created by the pandemic, such as a dramatic loss of revenue, can be relevant when determining whether an employer can deny a requested accommodation because it poses an undue hardship. Conversely, the relative seamlessness with which companies moved their workforces to telecommute during the pandemic may make it harder for an employer to claim that a request to continue working remotely is unreasonable.
Retaliation for Requesting a Reasonable Accommodation
The ADA prohibits employers from retaliating against employees for exercising their rights under the law, including requesting a reasonable accommodation. Whether or not the employer grants or denies your request, they cannot take an adverse employment action just because you sought the accommodation. Such adverse acts can include:
- Denial of promotion
- Disciplinary action
- Negative performance evaluation
- Reduction in pay
- Reduction in hours
- Involuntary transfer or change in responsibilities
If You Have Concerns About Your Rights Related to COVID-19, Speak With an Employment Lawyer Today
The challenges faced by workers during the ongoing pandemic can be overwhelming, regardless of whether they have disabilities. If you have questions regarding your employer’s ADA obligations related to COVID-19, or have any other employment-related concerns about your rights, please contact the employment law attorneys at Sommers Schwartz today.