Monday, May 17, 2021

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Reasonable Accommodation Guidance

The EEOC's May 7, 2020, updated guidance also adds several Q&A points regarding requests for reasonable accommodations. Some of the most significant points include the following:

For individuals who have a pre-existing condition that puts them at higher risk from COVID-19, the EEOC recommends several low-cost changes to the work environment, such as designating one-way aisles, using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers, or other accommodations that reduce chances of exposure. According to the EEOC, flexibility by employers and employees is key. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment are other possible solutions recommended by the EEOC.

The EEOC reminds employers that employees' preexisting mental illnesses or disorders can be exacerbated by the circumstances brought on by the health emergency, meaning that some individuals may now be in need of reasonable accommodations that had not been necessary before. Moreover, some employees may require different accommodations to deal with changed work situations, such as an employee who may need a different accommodation so he or she can effectively work from home.

The EEOC also opined that employers may still request information from an employee to determine if a medical condition is a disability and that they may still engage in the interactive process to see whether a disability requires an accommodation. Employers may also choose to shorten or forego the interactive process and simply grant an employee's accommodation on a temporary basis. Employers are encouraged to be proactive; they may ask employees with disabilities to request accommodations and engage in the interactive process for accommodations that employees believe they may need when the workplace re-opens or they return to work.

Employers are also advised that they are not required to provide a reasonable accommodation that would pose an "undue hardship" on the employer. In some cases, the pandemic may have changed what counts as an undue hardship for an employer. In particular, economic concerns brought on by the pandemic are relevant to determining what counts as a significant expense. According to the EEOC, "the sudden loss of some or all of an employer's income stream because of this pandemic is a relevant consideration." The EEOC cautions, however, that this does not mean that an employer can reject any accommodation that costs money: "an employer must weigh the cost of accommodation against its current budget while taking into account constraints created by this pandemic."

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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