In this episode of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Jennifer Shaw discuss how the COVID-19 pandemic has complicated reasonable accommodation requests and what employers should consider when they begin the interactive process with employees.
The CalChamber annual HR Symposium was held virtually this year and one popular session was Shaw’s “COVID-19: When Does an Accommodation Pose a Direct Threat?” Many attendees asked great, real-life questions, so Shaw was invited to the podcast to discuss the subject for podcast listeners, Frank says.
To start off, Frank asks Shaw, what exactly is an accommodation in the legal sense?
Employers should be careful with how they refer to employee requests. “Reasonable accommodation” bears legal weight, so if an employer refers to a request as an accommodation, they could be setting up a precedent in their workplace, Shaw cautions.
An accommodation must arise out of medical necessity, Shaw explains. An accommodation is an adjustment to an applicant or employee’s job or work environment that makes it possible for them to perform their job’s essential duties.
“You’re never accommodating the essential functions; you’re always working on the margins,” she says.
In many ways the COVID-19 pandemic has complicated how employers respond to accommodation requests, she tells Frank. A lot of things thought to be “essential”—such as working onsite—have turned out not to be for many job positions. For example, a lot of jobs can be performed offsite, such as in one’s living room, kitchen or even backyard shed.
But again, Shaw emphasizes, employers are legally obligated to agree to requests only if the employee or applicant has a disability and there is an accommodation that will help them perform the essential functions of their job.
Shaw recommends that employers treat their employees as if each employee is their favorite. Employers shouldn’t wait for an employee to come forward with an accommodation request; rather they should look to see if employees are having difficulties performing their jobs. Employers should look for physical problems, but they should also look out for mental issues. Does the employee seem overly anxious? Could they have post-traumatic stress disorder (PTSD)?
No matter what medical condition the employee has, employers should maintain a judgment-free zone, Shaw stresses.
COVID-19 Effects on Requests
Before the COVID-19 pandemic, accommodation requests were mostly straightforward and employers could simply ask what their employees needed. The pandemic, however, is creating a number of issues, and even the virus itself may produce anxiety in employees, Shaw says.
For example, what if an employee cannot wear a protective mask at the workplace because they have a medical condition, such as asthma? If an employer allows an employee to not wear a mask, the employer may be endangering their workplace and may be breaking a local ordinance or workplace law, Shaw explains.
In this example, she says, it is clear that the employee has a medical condition: asthma. The employer should start an interactive process for reasonable accommodation and review a variety of options. Can the employer put the worker on a different floor or area to protect other employees? Can the employee telework?
Shaw points out that some employees may try to find ways to work permanently at home, so employers need to make sure they obtain medical documentation.
Just as employers should treat the employee or applicant as their favorite employee, the employee/applicant also needs to act in good faith, she emphasizes. Employees shouldn’t lie in order to request to telework. They should be transparent about the reason for their request.
So, Frank asks, what obligations do employers have if an employee asks to work from home because they are concerned about the pandemic but do not have anxiety or a medical condition?
Shaw answers that the first thing the employer should do is clarify that the concern is not a disability. The issue then becomes a morale or a recruitment/retention issue and the employer should consider whether they can allow the requested work arrangement. But at that point, it’s not a legal obligation.
“This stuff isn’t easy,” Shaw says. If an employer is having problems sorting out any of these issues, she recommends that they can call the CalChamber Helpline or consult with their legal counsel.