In its recent COVID-19 Americans with Disabilities Act guidance, the U.S. Equal Employment Opportunity Commission encouraged that employers be flexible in determining accommodations for employees during the pandemic. Some suggestions included temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment to permit an individual with a disability to perform the essential functions of the job safely.
One employer may be learning this lesson the hard way.
A few weeks ago, the EEOC announced here that it had sued a leading provider of audio-visual technology solutions for disability discrimination. Supposedly, the company failed to accommodate an employee that had requested to telecommute one day a week as an accommodation for her disability. Here’s more about the lawsuit:
According to the lawsuit, a sales administrator who worked in [the company’s] headquarters requested to telework one day per week for three or four weeks as a reasonable accommodation for her disability of anxiety and depression. Her duties included researching new projects, reviewing online job applications and conducting telephone interviews. [The company] refused to grant this accommodation even though she could perform her duties remotely, and the company allowed other employees to telework. Instead, the company fired the sales administrator and said it would not have hired her had it known about her anxiety and depression.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability. The ADA also requires employers to reasonably accommodate an individual’s disability unless the employer can prove that doing so would be an undue hardship. The law also prohibits employers from retaliating against an employee because she requested a reasonable accommodation.
While the lawsuit was filed this month, the underlying allegations are pre-COVID-19.
Let’s forget about the allegation that the sales administrator said it would not have hired the employee had it known about her anxiety and depression. If true, that’s a dead giveaway that the company is screwed.
Instead, let’s focus on how your company should handle a request for a similar accommodation now.
- Review the employee’s job description, talk to his/her manager about the current needs of the position, and know what the company is doing to accommodate other similarly-situated employees.
- If you need medical information from the employee, e.g., validation that the employee is suffering from anxiety or depression, you can ask for it. You can also ask for accommodation suggestions from the employee’s physician.
- Engage in a good-faith interactive dialogue with the employee to determine the menu of possible reasonable accommodations. Ultimately, the employee is not entitled to his/her first choice. However, if the first choice is suitable, consider providing it. Why cause the employee any added stress?
- If you can’t accommodate because doing so would create an undue burden on the business, be prepared to articulate why to the employee.
- Otherwise, after you’ve provided the accommodation, check-in with the employee (and the employee’s manager) from time to time to see how things are going.
- Make sure that you are documenting along the way.
Follow these steps, and you should avoid any legal issues — let alone a headline in the EEOC’s newsroom.