When it comes to reasonable accommodations under the ADA during the COVID-19 pandemic, remote working may or may not qualify. On September 8, 2020, the Equal Employment Opportunity Commission, or the EEOC, stated that businesses are not required to automatically allow an employee to work remotely as a reasonable accommodation under the ADA. Whether remote working arrangements are reasonable accommodations is a fact-specific inquiry that should be determined through collaborative discussions between employer and employee on a case-by-case basis. If you have any questions regarding reasonable accommodations during COVID-19 or any other time, call us today to speak with a North Carolina employment attorney.
The Americans With Disabilities Act
The Americans With Disabilities Act protects those employees with physical or mental disabilities, whether apparent or not, and their right to work. In order to establish a case under the ADA, an employee must show:
- The employer is subject to the ADA
- The employee is disabled or perceived to be disabled by the employer
- The employee is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation
- The employee suffered an adverse employment action because of his or her disability
While an employee has the right to work, even with a disability, the employer has a right to understand any limitations that result from a disability and require a reasonable accommodation. Where an employee can describe the limitations in his ability to work because of a disability and show how reasonable accommodation will allow the employee to overcome those limitations, the employer must provide a reasonable accommodation. Contacting The Noble Law’s workplace discrimination lawyer may help you navigate through such situations.
Bear in mind, however, that not all employers will be subject to the provisions of the ADA. While the ADA covers those organizations that are considered public, such as state and local government employers, it also applies to those private business entities that employ 15 or more employees.
Physical Disabilities, Mental Disabilities, and Major Life Activities
A person with a disability is one who either has a record of, is regarded as having, or has any physical or mental impairment that “substantially limits one or more major life activities.” Amendments to the ADA have clarified that an impairment need not prevent, or significantly or severely restrict, a person from performing a major life activity and that the term “substantially limits” should be construed broadly in favor of expansive coverage.
Under the ADA, a disability is any physiological condition or disorder, disfigurement, and loss of limb or another body part that affects one or more body systems. Additionally, the ADA states that a disability includes any psychological or mental disorder such as a mental illness, learning disabilities, and intellectual disabilities. Some of the conditions specifically listed in the 2008 amendments to the ADA include:
- Intellectual disability
- Missing limbs
- Mobility impairments
- Cerebral palsy
- Muscular dystrophy
- Major depressive disorder
- Bipolar disorder
- Post-traumatic stress disorder
- Obsessive compulsive disorder
“Major life activities” are those activities that we do in everyday life. They include walking, standing, eating and drinking, caring for oneself, sleeping, and learning. Additionally, major life activities include those operations of major bodily functions such as respiration, circulation, and digestion, among others.
Essential Functions of a Job
The essential functions of a job are those duties that are fundamental to a specific job. When determining whether certain tasks are considered essential functions or insignificant functions that can be delegated to another employee, the following factors are commonly considered:
- Whether the job position exists specifically to perform those specific duties
- The number of employees available to perform the same duties
- The education, skills, or expertise required to perform those duties
To comply with the ADA, an employer must cooperate and be interactive in communications with the disabled employee to determine if there is some reasonable accommodation that would enable the employee to perform the essential functions of the job without posing some undue hardship on the business.
Where an accommodation would result in an undue hardship or direct threat to a business, it is no longer considered reasonable. The ADA will not require the employer to make accommodations that are not reasonable because they are significantly difficult or expensive to provide. However, it is the responsibility of the employer to show that an accommodation is too extensive, costly, or disruptive to the work environment to the point that it is no longer reasonable.
When determining what a reasonable accommodation is for a disabled employee, the employer should understand the employee’s requirements, how his disability might affect the job, and what environment he will be working in. Generally, reasonable accommodations include:
- A change in tasks
- Reserved or improved parking
- A change in training materials
- Improved accessibility to the work area
- Modification to facilities
- A change in the location where work is performed, including allowing for work-from-home options
Remote Work as a Reasonable Accommodation During COVID-19
A COVID-19 infection or being in a high-risk group may or may not be a disability under the ADA. Additionally, mental disorders that are worsened by the current pandemic may or may not also be considered a disability. Determining whether pandemic-related conditions are disabilities under the ADA are fact-specific inquiries that should be approached on a case-by-case basis.
Should a COVID-19-related condition be considered a disability, the employer may allow the employee to work from home to the extent that it is necessary. The employer, however, does not have to accept the employee’s first choice of accommodation of remote work if another viable option allows the employee to perform the essential functions of the job. This could look like different shift hours, increased personal protection equipment, and part-time remote work.
While the common accommodations listed above, including remote work options, are reasonable, eliminating an essential function of an employee’s job is never a reasonable accommodation under the ADA. Even where COVID-19 and mandated shutdowns have forced employees to work remotely, an employer does not have to grant a request to work remotely upon the business reopening if it would eliminate one of those essential functions.
Call Us Today to Speak with a North Carolina Employment Law Attorney
The ADA and HIPAA provide multiple protections to protect your medical information and prevent its unauthorized dissemination. If you think your rights have been violated, call the experienced attorneys at Noble Law. We provide consultations in our offices in New York and North Carolina, as well as remotely via videoconferencing. Call the Charlotte office at 704.626.6648, the Triangle office at 919.251.6008, or the New York office at 212.662.6500, or visit our website to schedule your consultation.