Are you aware that navigating disability reasonable accommodations during the COVID-19 pandemic can feel like trying to decipher a complex ‘black box’ of employer-employee interactions? In this enlightening episode of the Employee Survival Guide®, attorney Mark Carey sheds light on the often opaque world of disability rights and reasonable accommodations in the workplace, especially when it comes to the Americans with Disabilities Act (ADA) and the Rehabilitation Act. With the pandemic altering workplace dynamics, understanding how to request reasonable accommodations has never been more crucial for employees striving for job survival.
Mark dives deep into the interactive process required for requesting reasonable accommodations, emphasizing the necessity for ongoing dialogue between employees and employers. He tackles the pressing questions of whether teleworkers should receive the same accommodations as those working on-site and how public health concerns complicate these requests. The episode is a treasure trove of insights for anyone navigating employment law issues, providing listeners with the knowledge they need to advocate for their rights in a rapidly changing work environment.
As we explore the challenges posed by remote work and the shifting landscape of workplace culture, Mark highlights the importance of flexibility and creativity in crafting suitable reasonable accommodations. He stresses that both parties must engage in good faith to effectively navigate this intricate process, ensuring that employee rights are upheld amidst the complexities of employment discrimination and workplace disputes. This episode is not just for those facing disability challenges; it’s a vital resource for anyone interested in understanding their rights and responsibilities in today’s workplace.
If you’ve ever felt lost in the maze of employment law, or if you’re seeking career development tips to enhance your job satisfaction, this episode is a must-listen. From understanding performance monitoring to negotiating severance packages, Mark provides insider tips for employees that can empower you to take control of your career. Tune in to gain the knowledge you need to not only survive but thrive in your work environment, transforming challenges into opportunities for growth and advocacy.
Join us on the Employee Survival Guide® as we unravel the complexities of workplace accommodations, ensuring you have the tools to navigate the often murky waters of employment law. Whether you’re dealing with discrimination in the workplace or simply seeking to enhance your understanding of employee benefits and rights, this episode will equip you with the insights necessary for effective negotiation and employee empowerment.
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For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.
Disclaimer: For educational use only, not intended to be legal advice.
Transcript:
Speaker #0 Welcome to another edition of the Employee Survival Guide, where you can learn everything your employer does not want you to know about and more. Now, here’s attorney Mark Carey. Speaker #1 Hey, it’s Mark Carey here. Welcome to this week’s edition of the Employee Survival Guide podcast. This week’s topic is going to be thinking outside the black box, the interactive process of disability accommodation during COVID-19. 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 at all. 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. When it comes to the world of requests for disability accommodations under the Americans with Disabilities Act, the 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 the 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, workplace 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 the outputs to determine what unseen principal or Byzantine process is going on inside the box itself. The inputs will be specific requests for accommodation scenarios, and the outputs will be the Equal Employment Opportunity Commission’s guidelines and recommendations for ADA requests for accommodations during the COVID-19 pandemic. 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 an 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? That 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 ongoing process. Let’s look at some inputs and outputs to see how the interactive process works. Here’s a question. If my job requires me to be on-site and I have a pre-existing medical condition that makes me especially vulnerable to COVID-19, am I entitled to reasonable accommodations under the ADA? Answer, 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 substantially limiting impairment. When requesting 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 syndrome. 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. Next question. If my job is on-site and I have a pre-existing 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 answer, 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, number one, how the disability creates a limitation. Two, how the requested accommodation will effectively address the limitation. Three, whether another form of accommodation could effectively address the issue. And four, 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 designing the one-way aisles, using plexiglass tables, or other barriers to ensure minimum distances between customers and co-workers, 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. Next question. The employer just say that my requested accommodations pose an undue hardship and not engage in any sort of process. The answer, 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 an undue hardship, the employer must offer an alternative accommodation if one is available that does not involve undue hardship. And I’m going to refer you to the Job Accommodations Network, JAN, at askjan.org for more information on this topic. The discussion of the 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, must consider the overall financial resources of the facility making the reasonable accommodation, the number of persons employed at this facility, the effect of Thank you. on expenses and resources of the facility. How about the overall financial resources, size and number of employees, and the type and location of facilities of the employer. The type of operation of the employer, including the structure and functions of the workplace, the geographic separateness, and the administrative or physical relationship of the facility involved in making the accommodation to the employer. And finally, 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. Here’s the next question. When is an accommodation too costly? How can my employer decide? Won’t employers just say anything that costs money is too costly? Here’s the answer. 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 out… 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 also must determine whether funding is available from an outside source, such as a state rehabilitation agency, 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 the accommodation causes an 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. Next question. Besides providing many new reasons for needing accommodations, how does COVID-19 affect the interactive process with my employer, if at all? Answer. The interactive process is largely about assessing the relative burden of the particular accommodation on the employer’s operation. Therefore, it makes sense that a 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, quote, significant difficulty, end quote, 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 the 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 workplace 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. The next question. If I have a family member who has a medical condition, which is an ADA disability, that makes him or her especially vulnerable to COVID-19, does the ADA provide accommodations for me to reduce the risk of indirectly exposing my family member? The answer? 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 FMLA and the 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. Here’s the last question. 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? Answer, 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 employer’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 in order to determine what accommodations will work for an 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 for all involved. If you’d like more information about this topic, please contact our office at Caring Associates PC on the web at capcow.com or call us or email. Thank you for listening and look forward to speaking to you next time.