Many employees are being asked to return to the office this Summer due to perceptions, true or untrue, about waning COVID infections. As a result, a number of employees are asking to remain remote or telework because they have found a better work-life balance during the pandemic. Before denying these requests due to the "team building" experience of all working in one location, employers should be aware of potential Americans with Disabilities Act ("ADA") pitfalls.
The U.S. Equal Employment Opportunity Commission is looking closely at requests for remote work or telework as reasonable accommodations under the ADA with regard to the following categories of employees:
- Employees infected with COVID-19;
- Employees with conditions that put them at a higher risk of contracting COVID-19;
- Employees with diminished abilities to cope with COVID-19; and
- Employees that cannot get vaccinated due to preexisting conditions.
In the first instance, the EEOC has explicitly stated that COVID-19 itself can be a disability. For most people, it will not substantially limit a major life activity. Most experience congestion or a sore throat or other minor symptoms that resolve within a couple of weeks. However, for some, COVID-19 is considered a disability. This includes those diagnosed with "long COVID." This can be when a person experiences ongoing but intermittent days of headaches, dizziness, brain fog and other difficulties that a doctor attributes to the virus. It can also result in workers experiencing heart palpitations, shortness of breath and related effects that last several months. Last, it can include intestinal pain, vomiting and nausea that linger. For these employees, remote work or a hybrid schedule may be considered a reasonable accommodation for their disability.
In addition, employees that have pre-existing conditions or that are immunocompromised may be entitled to remote work as a reasonable accommodation due to the risk of serious illness from COVID-19. Among the current conditions that the CDC identifies as putting a person at higher risk of serious disease are: cancer, chronic kidney, liver, and lung diseases, diabetes, Down syndrome, heart conditions, Sickle cell disease, tuberculosis, and mental illnesses or disorders, including attention deficit/hyperactivity disorder, anxiety, obsessive-compulsive disorders, depressive disorders, and post-traumatic stress disorder.
Last, employees with mental disabilities may have a diminished ability to cope with the stress of returning to work while there is still some risk of contracting COVID. This last category of employees could arguably include all of us, but as with other disabilities under the ADA, employees are still required to request the accommodation and the employer can use the interactive process to request medical documentation if appropriate, to determine if the employee has a disability that needs accommodation. Moreover, circumstances created by the pandemic and workplace shutdown, particularly in industries coping with supply-chain issues, may be relevant to undue hardship.
A further note, if an employer requires employees to be vaccinated and an employee responds by saying that he or she cannot be vaccinated due to a disability, then under the ADA, the employer must show that the vaccination requirement is job-related and consistent with business necessity. In other words, the risk cannot be alleviated through social distancing, masking, or other accommodations. Moreover, in refusing to allow this employee to return to work, the employer would have to show that the employee's disability would pose a direct threat to the employee or others if he or she remains unvaccinated. This is an individualized assessment that is very dependent on the employee's position.
So, even though employees are returning to the workplace, the term "post-pandemic" is a bit of a misnomer. Employers will still have to consider the pandemic and its effect on their workforce when requiring employees to come to the office.
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