Employment Discrimination, Disability Accommodations and Return to Work after COVID-19 Closures

New York, NYVincent White, a partner at White, Hilferty and Albanese, hears stories like this frequently now: 

An employee at a New York financial services firm wants to continue to work from home even after the rest of the sales operation returns to the office. His serious heart condition raises the risks associated with exposure to COVID-19, but his request to work from home has been denied in the past. He has made the firm a lot of money, even from home. He doesn’t want an employment discrimination lawsuit, but he also doesn’t want his job to kill him.

It is essentially the same story for an immune-compromised worker in Northern California. The “big tech” firm wants him on site, where company culture is king. His supervisor previously turned down his disability accommodation request to work from home. Like the finance worker, however, he had considerable success at his job while working from home.

From White’s perspective, both workers may have the best shot they have ever had at working from home this time.  "After all,” he notes, “how can an employer claim your work from home accommodation is unreasonable when you have been succeeding from home for three months during the lockdown?"

But failure or success depends on “working the process,” of a disability accommodation request. “Process” can be a frustrating place to get stuck when your health hangs in the balance.

Reasonable accommodation under the Americans with Disabilities Act

The Americans with Disabilities Act  (ADA) prohibits discrimination against people with disabilities in employment, as well as several other areas of life. It requires employers to make reasonable accommodations that will allow qualified individuals with disabilities to perform the essential functions of the job, unless the accommodation is unreasonable or would create an undue hardship for the employer.  To be clear, an employer is not required to grant the requested accommodation – just to consider it.
When an employee requests a reasonable accommodation under the ADA, both parties are required to engage in an interactive process to determine what accommodation would be reasonable. An employer’s failure to engage in the process may be evidence of legally prohibited discrimination.

This process, itself, can be very protracted, with frequent requests for medical records and updates. An employer may re-open the question to request further information even after the accommodation is granted. The worker who loses her cool, tosses her work keys down on the supervisor’s desk and refuses to participate further will be understood to have abandoned the process and cannot then bring an ADA discrimination lawsuit. Slamming the door on your way out may feel good, but it doesn’t further the cause.

The “undue hardship” hurdle 

  
Separate from the issue of a prolonged process, another stumbling block for accommodation applicants is an employer’s argument that granting the accommodation would cause the business undue hardship. The term “undue hardship” brings  several other issues into the question, including:

• the nature and cost of the accommodation needed;
• the overall financial resources of the facility and the effect on expenses and resources;
• the type of operation, including the structure and functions of the workforce, geographic separateness; and
• the impact of the accommodation on the facility’s operation.

In the case of an employee who continued to perform well during pandemic closure, especially if the performance can be measured by some objective standard like sales, an employer might have a hard time pleading undue hardship. These criteria create a lot of latitude for the employer, though.

New EEOC guidance about COVID-19 accommodation requests

               
On May 7, the EEOC issued new COVID-19-specific guidance about requests for disability accommodation:

• An employer may shorten or adapt the interactive process or place an end date on the accommodation. Employers may also opt to provide a requested accommodation on an interim or trial basis.
• In some situations, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.
• An employer may assess undue hardship in providing certain accommodations by considering the facts of the particular job and workplace. For example, it may be more difficult to acquire certain items for employees who may be teleworking or it may be more difficult to hire temporary workers for non-essential functions that must be performed in the workplace. The sudden loss of an employer's income stream because of this pandemic is a relevant consideration in determining whether a reasonable accommodation may cause a significant expense.

None of this makes an employee’s argument for work-from-home accommodation easier. It also introduces an extra element of uncertainty for workers who need to know about continued employment prospects.  
         

Finer points of state and local disability discrimination laws 

    
State and local law may be more protective of the rights of disabled workers than federal law. This is especially true in New York, New York City and California. The process for pursuing a complaint for disability discrimination also varies somewhat among the states and localities. According to White, whose firm practices in all 50 states, "Every person living with a disability in every state has the above-described rights under federal statute. No state government can take that from them, but the states are able to grant additional rights and protections and many do. If you're confused, speak to an employment attorney. It is both our job and our duty to help you."