ADA/FEHA Accommodation and COVID-19: What You Need to Know

The Americans with Disabilities Act covers employers with 15 or more employees, and defines disabilities in 3 ways:

1. A physical or mental impairment that substantially limits one or more major life activities; OR
2. A record or past history of impairment; OR
3. Regarded as having an impairment.

• California’s Fair Employment and Housing Act (FEHA) applies to employers with 5 or more employees. FEHA defines disabilities broader than ADA; under FEHA, a disability can be any of the following:

1. A physical or mental disability that “limits” a major life activity; OR
2. A medical condition; OR
3. A record or history of physical or mental disability; OR
4. Being regarded as or treated by the employer as having or having had any mental or physical condition but may become a disability under FEHA; OR
5. Health impairment or mental or psychological condition that requires special education or related services.

If you were previously unaware of this employee’s disability, you are entitled to ask for supporting documentation of the disability from the employee and their medical provider. Both ADA and FEHA state that the employer has a duty or affirmative obligation to engage in the interactive process and provide a reasonable accommodation to an individual with a disability, absent undue hardship to the employer. Demonstrating undue hardship typically requires significant difficulty or expense for the employer.

Types of Reasonable Accommodations

Under FEHA, there are many possible reasonable accommodations to discuss with your employees who need an accommodation due to their disability as it relates to COVID-19. Some of these include:

• Workspace modifications
• Distributing or otherwise providing personal protective equipment (PPE) such as masks, gloves, gowns, hand sanitizer, disinfecting wipes, etc.
  • Similarly, increased sanitization procedures around the office/worksite.
• Transportation accommodations if your employee commutes to work using public transportation, you can provide them with a travel stipend or car allowance to reduce the risk of transmission via public transportation.
• Telework
• Allowing the employee a paid or unpaid leave of absence (LOA) –the employer is not obligated to provide an indefinite LOA as an accommodation. Please review MMC’s August 2020 newsletter for additional information on LOAs.

Fear of Returning to Work

Your employees may have reached out to you saying they are concerned about returning to work because they are scared about contracting the highly contagious virus, and therefore are refusing to return to work. Assuming you as the employer have taken adequate safety precautions (i.e., providing sanitizer, masks and other PPE, increasing cleaning/disinfecting, etc.) to protect your otherwise healthy employees with no pre-existing conditions, your employees’ fear alone is an insufficient reason to refuse returning to work.

• However, employees with pre-existing conditions may be entitled to reasonable accommodations given their concern of contracting the virus.
• Similarly, psychological conditions like PTSD may be entitled to a reasonable accommodation in this situation.
• As the employer, you have a duty to engage in the interactive process with the employee to determine how best to accommodate their disability. If the employee requests to telework, you are not required to give the precise accommodation the employee is requesting if there is another accommodation that would work as well.
• NOTE: when an employee is concerned about returning to work because they live with higher-risk individuals, this alone does not mean the employee is entitled to a reasonable accommodation under the ADA. The Equal Opportunity Employment Commission (EEOC) says that the “ADA does not require the employer to accommodate an employee without a disability based on the disability related needs of a family member or another person with whom she is associated.”[1]

Beware of Possible Discrimination Against Older and Pregnant Workers!

The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against employees over the age of 40. As you may already know, the COVID-19 virus is especially concerning for individuals over the age of 60 who have pre-existing conditions.

Similarly, under the ADA pregnancy in itself is not a disability covered by the Act. However, you may have a pregnant employee who has a pregnancy related disability which would qualify for ADA/FEHA protection, such as severe morning sickness or another condition that renders your employee unable to perform the essential functions her job without significant risk to herself or her pregnancy.

Be cautious not to bar your older or pregnant workers from returning to work, as that can be considered discrimination. You must treat these employees the same as you would other employees. For example, if you are recalling all other workers and tell a pregnant worker or a worker over the age of 60 that they need to stay home and continue teleworking for their own safety, you are treating that person differently. No matter how well intentioned your approach, you should not refuse to recall an older or pregnant worker simply due to their protected status.

Remember: just because your employee with a disability is requesting to telework, you are not required to immediately grant that request. As the employer, you have a duty to engage in the interactive process with your employee, and determine whether another form of reasonable accommodation may be applicable and sufficient. The key is to engage with your employee so you are working together to find an accommodation and solution to the situation. Make sure you are prioritizing your employees’ health and safety at the worksite by undertaking extra disinfecting and sanitization protocols, and providing sufficient PPE for your worksite.

Please reach out to MMC as soon as you discover any employee’s need for a reasonable accommodation so MMC can better assist you in navigating these matters.

[1] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws