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Thinking Outside the “Black Box”: The Interactive Process of Disability Accommodations During Covid-19

Thinking Outside the “Black Box”: The Interactive Process of Disability Accommodations During Covid-19

By Chris Avcollie

“In science, computing, and engineering, a ‘black box’ is a device, system or object which can be viewed in terms of its inputs and outputs…without any knowledge of its internal workings. Its implementation is ‘opaque’ ([i.e.] black). Almost anything might be referred to as a black box: a transistor, an engine, an algorithm, the human brain, an institution or government.” (https://en.wikipedia.org/wiki/Black_box).

When it comes to the world of requests for disability accommodations under the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act, the “black box” or the “unseen internal mechanism,” is the ever elusive “interactive process”. This is the process of information gathering and discussion between the employee requesting the disability accommodation and the employer who is obligated to determine whether the accommodation requested will be granted.  I analogize this process to a “black box” because it is inherently opaque. Why? While the ADA and the Rehabilitation Act require that both employers and employees engage in this interactive process, neither statute precisely defines what it is or when it starts or ends. It is not clear what precisely the employer must do in this process or what the employee can and should expect. How long should the process take? How does anyone know if they are doing it correctly? How do we know the proper accommodations were considered?

Now factor in the public health, work place safety, and personal medical complexities of the Covid-19 pandemic and the concomitant work-from home revolution and the box becomes even blacker. Do employers have to offer the same accommodations to teleworkers that they offered to workers when they were on site? Are accommodations automatically available for those with health conditions that put them at greater risk for Covid-19? If a disabled employee was able to do her job during temporary telework periods due to Covid-19, is she entitled to continue telework after the employer resumes regular operations?  More importantly, what is the specific “interactive process” that will be used to decide these issues?

Let’s see if we can figure out what is going on inside the black box. As with all black box analysis we are going to examine the “inputs” and “outputs” to determine what unseen principle or byzantine process is going on inside the box itself.  The “inputs” will be specific request for accommodation scenarios and the “outputs” will be the Equal Employment Opportunity Commission’s (“EEOC”) guidelines and recommendations for ADA requests for accommodation during Coivid-19.[1]

First, let’s look at the box itself.  The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic. Under the ADA, “reasonable accommodations” are adjustments or modifications in the facilities, operations, or equipment provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an “undue hardship,” on the employer. “Undue hardship” means “significant difficulty or expense.” That is the basic reasonable accommodation rule under the ADA.

An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available that will not impose an undue hardship. But how is that determination made by the employer? The not so simple answer is: “Through the ‘interactive process.’” We have now entered the black box.

The “interactive process”, as described above, is the information gathering and discussion process between the employee requesting the disability accommodation and the employer. It begins when a request for accommodation is made by an employee and the employer responds. Where it ends is more difficult to pinpoint. This process may continue or stop and resume again when circumstances change. It should really be thought of as an on-going process. Let’s look at some “inputs” and “outputs” to see how the “interactive process” works:

›           If my job requires me to be on-site and I have a preexisting medical condition that makes me especially vulnerable to Covid-19, am I entitled to reasonable accommodations under the ADA?

Possibly. The threshold question is whether your condition is a disability as defined by the ADA. If the condition is not a disability under the ADA you might not be entitled to accommodation even if you are at higher risk. The ADA defines a “disability” as “a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment.” When requesting an accommodation, the employee should ask his or her physician whether the condition in question meets that definition. Some physical and mental conditions which meet the definition include but are not limited to: heart disease, diabetes, lung disease, compromised immunity, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder. In this example, the employer would begin the interactive process by asking questions and/or requesting medical documentation from the employee to determine whether the condition for which the employee is requesting an accommodation is an ADA disability. If it is not, then the process will likely end with a denial. If the condition is in fact an ADA disability then the interactive process continues with an exploration of the accommodations possible and available.

          If my job is on-site and I have a preexisting medical condition (which is an ADA disability) that makes me especially vulnerable to Covid-19, how do I know what accommodations I can get?

The type of accommodations needed are usually proposed initially by the employee or her physician. The interactive process continues here as the employer then asks questions such as: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of her position (that is, the fundamental job duties). Some recommended Covid-19 accommodations to reduce exposure include without limitation: changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers; providing personal protective equipment (PPE); temporary job restructuring of marginal job duties; temporary transfers to a different position; or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure. Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances.

         Can my employer just say that my requested accommodations pose an “undue hardship,” and not engage in any sort of process?

The employer may not simply deny a requested accommodation without engaging in the interactive process. The employer is required to actually “discuss” the accommodations with the employee. If a particular requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available that does not involve undue hardship.( In discussing accommodation requests, the EEOC recommends that employers and employees consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.) The discussion of proposed accommodations and the proposal of alternatives is part of the required process. Further, a general denial by an employer is insufficient. Undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. The employer must consider certain factors such as:

  • the nature and cost of the accommodation needed;
  • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
  • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
  • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and
  • the impact of the accommodation on the operation of the facility.

If the employer cannot answer questions regarding these topics, it is likely that the interactive process was not properly conducted.

          When is an accommodation too costly? How can my employer decide? Won’t employers just say anything that costs money is too costly?

“Undue hardship” is determined based on the net cost to the employer. Employers are required to actually calculate costs and to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly. Thus, an employer is not only required to assess the cost-impact of a requested accommodation on the organization but must also determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. If only a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if she or he will pay the difference. If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation. Again, if the employer is engaging in the interactive process in good faith, these points will be considered and discussed with the employee.

          Besides providing many new reasons for needing accommodations, how does Covid-19 affect the interactive process with my employer, if at all?

The interactive process is largely about assessing the relative burden of a particular accommodation on the employer’s operation. Therefore it makes sense that the financial, economic, and situational conditions affecting the workplace due to Covid-19 will factor into that calculus. In some cases, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one in the new conditions imposed by Covid-19. Further, an employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations considering the facts of the particular workplace. For example, it may be more difficult now to conduct a needs assessment or to acquire certain PPE items. Covid-19 could cause “excusable delays” in the interactive process. The loss of some or all of an employer’s income stream because of the pandemic may affect the calculation of whether an accommodation is too costly. The physical layout of the facility may have changed due to Covid-19 safety measures, and a particular accommodation might not be feasible. Temporary accommodations might be granted and later changed or withdrawn as circumstances change. It might be easier to accommodate a request for telework or more difficult to obtain a temporary worker to take on marginal job duties. These complex factors make the interactive process more important than ever. Flexibility, creativity, and effort are needed to come up with workable accommodations in this challenging environment. The EEOC advises that there are many no-cost or very low-cost accommodations that can be found to assist those struggling to work during Covid-19.

          If I have a family member who has a medical condition (which is an ADA disability) that makes him/her especially vulnerable to Covid-19, does the ADA provide accommodations for me to reduce the risk of indirectly exposing my family member?

No. While the ADA does prohibit discrimination based on one’s association with an individual with a disability, that protection is limited to disparate treatment or actual harassment. The ADA does not require employers to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. Of course, an employer is free to provide such an accommodation if it chooses. While caregivers and family members of individuals with disabilities are not entitled to accommodations under the ADA, they may be entitled to leave under the federal Family and Medical Leave Act (FMLA) or the federal Families First Coronavirus Response Act. If an employee’s close family member has Covid-19, the FMLA could provide leave to care for that family member.

          If I have a medical condition (which is an ADA disability) that makes me especially vulnerable to Covid-19 and my employer allowed me (and others) to work remotely for a period of time, does my employer automatically have to grant me telework as a reasonable accommodation when the company returns to on-site work?

Not necessarily. Whenever an accommodation is requested the employer can engage in the interactive process and determine whether there is a disability related reason for it and whether there is an undue hardship under the circumstances. This is a fact-specific inquiry that can be made at the time the accommodation is requested. If the employee’s disability does not cause a limitation that will be relieved by telework, then it need not be granted. Further, if the employee’s disability related limitation can be addressed with another accommodation then that accommodation may be provided instead of telework. Additionally, if the telework arrangement requires the employer to excuse the employee from certain essential functions of the job, the employer need not excuse that function even if it did so voluntarily for a period of time out of necessity.  The ADA does not require an employer to eliminate an essential function of a position as an accommodation. However, if the disability related limitation would be removed by telework and all essential functions of the employee’s job were performed satisfactorily during the telework period, then the period of telework could be seen as an experiment that demonstrates that the accommodation was effective and satisfies all job requirements.  The interactive process must be flexible, cooperative, and truly interactive to determine what accommodations will work for employer and employee.

Based on our “black box” analysis here, it seems that the “unseen mechanism” that makes the interactive process work is some combination of cooperation, communication, and flexibility. While the specific results may vary widely depending on the factors mentioned here, it is clear that in the age of Covid-19, obtaining the right output from the “black box” that is the ADA interactive process requires a lot of input from all involved.

If you or someone you know needs advice or assistance in navigating a request for accommodation, please contact us at info@capclaw.com  or call 203-255-4150 and speak to one of the employment lawyers at Carey & Associates, P.C.

[1] All of the substantive information contained herein is derived from the EEOC website at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

Christopher S. Avcollie

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