ADA Interactive Process and COVID-19

Worksite accommodation requests are on the rise as staff get ready to return to the workplace, resulting in the need for the Americans with Disabilities Act (ADA) interactive process.

High-risk health factors are largely responsible for the increased number of requests for continuation of remote work arrangements. When a request for accommodation is received, an employer should do the following:

• Determine if the individual’s condition is a disability
• Discuss how the requested accommodation would enable an employee to keep working
• Explore alternate accommodations that may meet the individual’s needs
• Request medical documentation as needed

The interactive process provides an opportunity for the employer and the employee to work together to identify a reasonable accommodation. Guidance can be found in the HRX Engaging in the ADA Interactive Process and includes links to tools in the HR Library.

Supervisor Roles

It is important for HR to inform supervisors of their role in the ADA accommodation process. Often, an employee will go to their immediate supervisor with a request or to express concerns about a health condition or disability. It is imperative the supervisor direct the individual to HR and let HR know they’re sending the employee their way.

The supervisor should be taught to listen to the employee, understand when a request is being made even when words like accommodation or disability are not used, and keep any medical information shared by the employee confidential.

Additionally, HR should help supervisors avoid mishaps and provide examples of common mistakes, including:

• Telling an employee they must resign
• Telling an employee their request cannot be accommodated
• Minimizing or dismissing the employee’s concerns or their health risks
• Asking the employee to identify their medical condition or disability
• Expressing a personal opinion about an employee’s health condition, the health effects of the pandemic, or the validity of an employee’s concerns

Accommodations

Lately, employees are approaching a supervisor or HR with a request to continue a remote work arrangement. However, the actual need is to eliminate exposure to or reduce contact with others to reduce their risk of getting COVID-19.

Some districts have asked for template forms that doctors can complete to help facilitate the accommodation request process. While helpful for many things, template forms for ADA purposes can prove challenging because appropriate medical documentation regarding the nature of impairment, its severity, the duration, the activities limited by the impairment, and the extent to which impairment limits the employee’s ability to perform the job’s essential functions, are specific to the employee’s position and individual disability. A template form might provide some of these details, but districts regularly would need to seek additional information from the employee’s health care provider to have enough information to have a meaningful interactive process.

Remember, the interactive process must involve the employee and the employer. Input from a physician may be considered, but ultimately the employer chooses the appropriate accommodation.

Alternative accommodations to working remotely and eliminate exposure or reduce contact with others might include:

• Install plexiglass shield at desk/work area
• Reassign itinerant employees to sites with fewer students
• Provide masks with air filters, N95 mask, or face shield
• Change location to more isolated/protected area or room with a window that opens
• Change hours
• Allow part-time onsite and part-time home
• Reassign temporarily to remote work position
• Upgrade to higher Minimum Efficiency Reporting Value (MERV) AC filters and fresh air intake
• Replace AC filters more frequently
• Install student desk dividers
• Supply room air purifier
• Make hand sanitizer stations easily accessible
• Move to larger classroom with windows to allow fresh air or reduce class size
• Allow access to outdoor teaching or worksite
• Reassign to vacant non-teaching position
• Enforce existing safety protocol (e.g., 6 ft. rule, masks, good hygiene)
• Remove high contact items such as rugs
• Reduce transitions or periods
• Declutter space

Because the need for accommodations during the pandemic may be temporary, an employer may choose to place an end date on the accommodation and review the need to continue or adapt the accommodation when it expires. In this current environment, needs continue to change, so accommodations may also need to change.

Additional Considerations

An employer rarely will need to initiate a request for accommodation, but under limited circumstances it may be required, including when the employer:

• Knows the employee has a disability
• Knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and
• Knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation

Some employers are receiving requests for accommodations based on an employee’s fear of exposure and a family member’s high-risk health factor were they to contract COVID-19. An employer is not required under ADA to accommodate an employee’s fear nor a family member’s disability.

The Equal Employment Opportunity Commission (EEOC) provides guidance about COVID-19 and the ADA, the Rehabilitation Act, and other EEO laws. Additionally, the Job Accommodation Network (JAN) offers strategies for employers to keep in mind when dealing with communicable diseases such as COVID-19 in the workplace.

An employer may provide employees information they can use to limit interactions with other people as much as possible and precautions to prevent getting COVID-19 when interactions are necessary.