Return to Work: Navigating the Interactive Process amid the Coronavirus Pandemic

06.12.2020

On May 4, 2020, the Governor issued Executive Order No. N-60-20, and formally began the process of permitting employers to “reopen” their operations despite the ongoing Coronavirus disease 2019 (“COVID-19”) pandemic. Following this directive from Sacramento, cities, counties, housing authorities, transit agencies, water districts, and other special districts (“public employers”) have begun to plan for their employees to return to the physical workplace.

In a prior Alert, we discussed initial guidance provided by the United States Equal Employment Opportunity Commission (“EEOC”), about how the current pandemic affected employee accommodations and the return to work. In light of this prior direction and the ongoing workplace safety challenges faced in the return to work process, public employers should consider how COVID-19 affects employees’ accommodation requests and the overall interactive process under the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act (“FEHA”). This Alert also considers some common questions concerning the accommodation process and the current pandemic. 

Accommodations and the “Interactive Process”

Under the ADA and FEHA, public employers must engage in the interactive process with employees suffering from a known qualifying disability. As part of the interactive process, public employers should consider whether an employee’s request for a reasonable accommodation imposes an undue hardship on the employer. Public employees may respond to a directive to return to work in a public employer’s physical facilities by requesting an accommodation. When engaging in the interactive process, public employers should carefully assess the circumstances posed for each employee. 

• How can a public employer accommodate an employee with job duties that can only be done at the workplace, if the employee has a preexisting disability that places him or her at higher risk due to COVID-19?

A public employer may be able to provide temporary accommodations to employees with preexisting disabilities, which can offer protection for this higher level of risk without causing undue hardship on the public employer. Temporary, low-cost accommodations may include the following: the use of Plexiglas, tables, or other barriers to ensure minimum distances between people, and thus reduce contact with or exposure to others; temporary relocation of such employees to areas that have less contact with others; temporary transfers; modified schedules; and temporary use of closed-door offices.

Public employers should remain flexible, request medical documentation if needed, and discuss how the employee’s requested accommodation would enable him or her to perform work safely. Public employers should also assess whether the present circumstances create “significant difficulty” in acquiring or providing certain accommodations. For instance, the present pandemic may pose practical difficulties in obtaining materials for modifying the workspace to accommodate employees, or in retaining contractors to implement workspace changes. Public employers may also face operational challenges in reassigning certain employees, based on scaled-back operations due to the pandemic.  

• How should a public employer respond if an employee requests an accommodation because he or she has a medical condition that the CDC says may put him or her at higher risk for severe illness from COVID-19? 

In its prior guidance, the EEOC explained that employees must inform their employers of the need for accommodation based upon a medical condition placing them at higher risk for severe illness. Public employers should note that an employee need not use the term “reasonable accommodation” in their communication in order to trigger a public employer’s duty to engage in the interactive process. Upon receiving such a request, public employers may ask questions or seek medical documentation to inform their assessment of whether the individual is a qualified individual with a disability and whether a reasonable accommodation can be provided without causing an undue hardship on the public employer. 

• If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he or she be entitled to a reasonable accommodation (absent undue hardship)?

In its prior guidance, the EEOC explained that an employer should follow the ordinary accommodation process in handling this issue. For instance, public employers should consider: asking the employee questions to determine whether the condition constitutes a disability; discussing with the employee how the requested accommodation would assist him or her; exploring alternative accommodations that may meet the employee’s needs; and requesting medical documentation if needed. Public employers should use care to distinguish between employees experiencing significant stress or fear related to the pandemic, and those coping with a preexisting mental health condition constituting a legally-protected disability. 

• What if an employee responds to a public employer’s return to work order by requesting to continue working from home?

Public employers should inquire as to the basis for the employee’s request to continue working remotely. Remote work could generally be considered a “reasonable accommodation.” Given that many public employers have required that their employees work remotely, they may have difficulty arguing that a continuing remote work arrangement poses an undue hardship. Nonetheless, absent a disability or other legally protected reason, public employers can choose to deny an employee’s request to continue working remotely from home based on its operational needs. 

• How do accommodation issues impact a public employer’s enforcement of its face covering policy?

Public employers should be prepared to address accommodations issues associated with a face-covering policy. For example, some employees who suffer from asthma, anxiety, and post-traumatic stress disorder may potentially experience difficulties with wearing masks in the workplace. For several of the reasons listed above, public employers should consider how to accommodate these disability-related issues while generally enforcing its safety-geared face covering policy. For instance, public employers may offer to accommodate employees suffering from asthma, anxiety, or other legally-protected disabilities by: permitting them to wear modified face masks; placing them in temporary closed-door offices; relocating them to work areas that have less contact with others; or consider letting these employees work from home.

Public employers may also receive complaints from employees suffering from anxiety, post-traumatic stress disorder, or other legally-protected disabilities, that the public employer’s face covering policy is too lenient and thereby exacerbates their condition. If a public employer does not require face coverings be worn in all circumstances in the workplace, employees may report higher levels of anxiety and request accommodation. Public employers should follow the ordinary accommodation process, and consider whether temporary and/or low-cost measures would accommodate the employee’s concerns. This may include permitting the employee to work remotely, particularly if the employee had previously been allowed to telework. 

• What accommodation concerns may be raised by employees who work in cubicles?

Public employers should be prepared to address accommodations issues for employees who work in cubicles or work stations that leave them exposed to others passing through the hallways. If these employees report an underlying condition, they may face a higher risk for severe illness due to COVID-19 based on their exposed work location. As discussed above, employees may suffer increased anxiety, symptoms of post-traumatic stress disorder, or other legally-protected mental health conditions based on the public employer’s requirement that employees wear a face covering at work — or conversely based on a perception that a public employer’s face covering policy is too lax. These concerns may be further exacerbated by public employees’ work location in cubicles, reception desks, and other exposed work stations.

Public employers should consider putting up physical barriers such as Plexiglas, designating one-way aisles, relocating such employees to closed-door offices or spaces that have less contact with others, or consider letting these employees work from home. As noted above, public employers should remain mindful of the operational, fiscal and practical constraints created by the pandemic when evaluating whether a requested accommodation for an employee working in a cubicle is “reasonable” and feasible.

While this Alert provides some guidance into addressing accommodations issues in the context of the COVID-19 pandemic, public employers’ obligations to engage in the interactive process depend on the particular circumstances involved in a given request. Public employers should carefully consider the circumstances and nuances of each accommodation request, and should generally seek the advice of counsel before accepting or rejecting these requests.  Please feel free to contact the Alert’s authors or your regular AALRR attorney to address accommodation-related issues, or other employment challenges involving the COVID-19 pandemic.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2020 Atkinson, Andelson, Loya, Ruud & Romo