Employee Survival Guide® - Thinking Outside the “Black Box”: The Interactive Process of Disability Accommodations During Covid-19

Starting point is 00:00:00 Welcome to another edition of the Employee Survival Guide, where you can learn everything your employer does not want you to know about and more. Now, here's attorney Mark Carey. Hey, it's Mark Carey here. Welcome to this week's edition of the Employee Survival Guide podcast. This week's topic is going to be thinking outside the black box, the interactive process of disability accommodation during COVID-19. In science, computing, and engineering, a black box is a device, system, or object which can be viewed in terms of its inputs and outputs without any knowledge of its internal workings at all. Its implementation is opaque, i.e. black. Almost anything might be referred to as a black box. A transistor, an engine, an algorithm, the human brain, an institution or government. When it comes to the world of requests for

Starting point is 00:00:53 disability accommodations under the Americans with Disabilities Act, the ADA, and the Rehabilitation Act, the black box or the unseen internal mechanism is the ever-elusive interactive process. the unseen internal mechanism is the ever-elusive interactive process. This is the process of information gathering and discussion between the employee requesting the disability accommodation and the employer who is obligated to determine whether the accommodation requested will be granted. I analogize this process to a black box because it is inherently opaque. Why? While the ADA and the Rehabilitation Act require that both employers and employees engage in this interactive process, neither statute precisely defines what it is or when it starts or ends. It is not clear what precisely the employer must do in the process

Starting point is 00:01:39 or what the employee can and should expect. How long should the process take? How does anyone know if they are doing it correctly? How do we know the proper accommodations were considered? Now factor in the public health, workplace safety, and personal medical complexities of the COVID-19 pandemic and the concomitant work-from-home revolution, and the box becomes even blacker. Do employers have to offer the same accommodations to teleworkers that they offered to workers when they were on-site?

Starting point is 00:02:12 Are accommodations automatically available for those with health conditions that put them at greater risk for COVID-19? If a disabled employee was able to do her job during temporary telework periods due to COVID-19, is she entitled to continue telework after the employer resumes regular operations? More importantly, what is the specific interactive process that will be used to decide these issues? Let's see if we can figure out what is going on inside the black box. As with all black box analysis, we are going to examine the inputs and the outputs to determine what unseen principal or Byzantine process is going on inside the box itself. The inputs will be specific requests for accommodation scenarios, and the outputs will be the Equal Employment Opportunity Commission's guidelines and recommendations for ADA requests for accommodations during the COVID-19 pandemic.

Starting point is 00:03:01 First, let's look at the box itself. during the COVID-19 pandemic. First, let's look at the box itself. The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic. Under the ADA, reasonable accommodations are adjustments or modifications in the facilities, operations, or equipment provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship on the employer. Undue hardship means significant difficulty or expense. That is the basic reasonable accommodation rule under the ADA. An employer has the discretion to choose among effective

Starting point is 00:03:49 accommodations. Where a requested accommodation would result in an undue hardship, the employer must offer an alternative accommodation if one is available that will not impose an undue hardship. But how is that determination made by the employer? That not-so-simple answer is through the interactive process. We have now entered the black box. The interactive process, as described above, is the information gathering and discussion process between the employee requesting the disability accommodation and the employer. It begins when a request for accommodation is made by an employee, and the employer responds.

Starting point is 00:04:23 Where it ends is more difficult to pinpoint. This process may continue or stop and resume again when circumstances change. It should really be thought of as an ongoing process. Let's look at some inputs and outputs to see how the interactive process works. Here's a question. If my job requires me to be on-site and I have a pre-existing medical condition that makes me especially vulnerable to COVID-19, am I entitled to reasonable accommodations under the ADA? Answer, possibly. The threshold question is whether your condition is a disability as defined by the ADA. If the condition is not a disability under the ADA, you might not be entitled to accommodation even if you are at higher risk.

Starting point is 00:05:05 entitled to accommodation even if you are at higher risk. The ADA defines a disability as a physical or mental impairment that substantially limits a major life activity or a history of substantially limiting impairment. When requesting accommodation, the employee should ask his or her physician whether the condition in question meets that definition. Some physical and mental conditions which meet the definition include, but are not limited to, heart disease, diabetes, lung disease, compromised immunity, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress syndrome. In this example, the employer would begin the interactive process by asking questions and or requesting medical documentation from the employee to determine whether the condition for which the employee is requesting an accommodation is an ADA disability. If it is not, then the process

Starting point is 00:05:49 will likely end with a denial. If the condition is in fact an ADA disability, then the interactive process continues with an exploration of the accommodations possible and available. Next question. If my job is on-site and I have a pre-existing medical condition, which is an ADA disability, that makes me especially vulnerable to COVID-19, how do I know what accommodations I can get? The answer? The type of accommodations needed are usually proposed initially by the employee or her physician. The interactive process continues here as the employer then asks questions such as, number one, how the disability creates a limitation.

Starting point is 00:06:31 Two, how the requested accommodation will effectively address the limitation. Three, whether another form of accommodation could effectively address the issue. And four, how a proposed accommodation will enable the employee to continue performing the essential functions of her position, that is, the fundamental job duties. Some recommended COVID-19 accommodations to reduce exposure include, without limitation, changes to the work environment, such as designing the one-way aisles, using plexiglass tables, or other barriers to ensure minimum distances between customers and coworkers, providing personal protective equipment, PPE, temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure. Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances.

Starting point is 00:07:33 Next question. Does the employer just say that my requested accommodations pose an undue hardship and not engage in any sort of process? The answer, the employer may not simply deny a requested accommodation without engaging in the interactive process. The employer is required to actually discuss the accommodations with the employee. If a particular requested accommodation would result in an undue hardship, the employer must offer an alternative accommodation if one is available that does not involve undue hardship.

Starting point is 00:08:04 And I'm going to refer you to the Job Accommodations Network, JAN, alternative accommodation if one is available that does not involve undue hardship. And I'm going to refer you to the Job Accommodations Network, JAN, at askjan.org for more information on this topic. The discussion of the proposed accommodations and the proposal of alternatives is part of the required process. Further, a general denial by an employer is insufficient. Undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. The employer must consider certain factors such as the nature and cost of the accommodation needed, must consider the overall financial resources of the facility making the reasonable accommodation, the number of persons employed at this facility, the effect

Starting point is 00:08:50 on expenses and resources of the facility. How about the overall financial resources, size, and number of employees, and the type and location of facilities of the employer? The type of operation of the employer, including the structure and functions of the workplace, the geographic separateness, and the administrative or physical relationship of the facility involved in making the accommodation to the employer. And finally, the impact of the accommodation on the operation of the facility. If the employer cannot answer questions regarding these topics, it is likely that the interactive process was not properly conducted. Here's the next question. When is an accommodation too costly? How can my employer decide? Won't employers just say anything that costs money is too costly? Here's the answer. Undue hardship is

Starting point is 00:09:38 determined based on the net cost to the employer. Employers are required to actually calculate costs and to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly. Thus, an employer is not only required to assess the cost impact of a requested accommodation on the organization, but also must determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. If only a portion of the cost of the accommodation causes an undue hardship,

Starting point is 00:10:19 the employer should ask the individual with a disability if she or he will pay the difference. If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation. Again, if the employer is engaging in the interactive process in good faith, these points will be considered and discussed with the employee. Next question. Besides providing many new reasons for needing accommodations, how does COVID-19 affect the interactive process with my employer, if at all? Answer. The interactive process is

Starting point is 00:10:56 largely about assessing the relative burden of the particular accommodation on the employer's operation. Therefore, it makes sense that a financial, economic, and situational conditions affecting the workplace due to COVID-19 will factor into that calculus. In some cases, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one in the new conditions imposed by COVID-19. Further, an employer may consider whether current circumstances create, quote, significant difficulty, end quote, in acquiring or providing certain accommodations, considering the facts of the particular workplace. For example, it may be more difficult now to conduct a needs assessment or to acquire certain PPE items.

Starting point is 00:11:39 COVID-19 could cause excusable delays in the interactive process. The loss of some or all of the employer's income stream because of the pandemic may affect the calculation of whether an accommodation is too costly. The physical layout of the facility may have changed due to COVID-19 safety measures, and a particular accommodation might not be feasible. Temporary accommodations might be granted and later changed or withdrawn as circumstances change. It might be easier to accommodate a request for telework or more difficult to obtain a temporary worker to take on marginal job duties. These complex factors make the interactive process more important than ever. Flexibility, creativity, and effort are needed to come up with workplace accommodations in this challenging environment. The EEOC advises that there are many no-cost or very low-cost accommodations that can be found

Starting point is 00:12:31 to assist those struggling to work during COVID-19. The next question. If I have a family member who has a medical condition, which is an ADA disability, that makes him or her especially vulnerable to COVID-19, does the ADA provide accommodations for me to reduce the risk of indirectly exposing my family member? The answer, no. While the ADA does prohibit discrimination based on one's association with an individual with a disability, that protection is limited to disparate treatment or actual harassment. The ADA does not require employers to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. Of course, an employer is free to provide such an accommodation if it chooses.

Starting point is 00:13:20 While caregivers and family members of individuals with disabilities are not entitled to accommodations under the ADA, they may be entitled to leave under the FMLA and the Families First Coronavirus Response Act. If an employee's close family member has COVID-19, the FMLA could provide leave to care for that family member. Here's the last question. Here's the last question. If I have a medical condition, which is an ADA disability, that makes me especially vulnerable to COVID-19, and my employer allowed me and others to work remotely for a period of time, does my employer automatically have to grant requested, the employer can engage in the interactive process and determine whether there is a disability-related reason for it and whether there is an undue hardship under the circumstances. This is a fact-specific inquiry that can be made at the time the accommodation is requested. If the employer's disability does not cause a limitation that will be relieved by telework, then it need not be granted.

Starting point is 00:14:27 Further, if the employee's disability-related limitation can be addressed with another accommodation, then that accommodation may be provided instead of telework. Additionally, if the telework arrangement requires the employer to excuse the employee from certain essential functions of the job, the employer need not excuse that function, even if it did so voluntarily for a period of time out of necessity. The ADA does not require an employer to eliminate an essential function of a position as an accommodation. However, if the disability-related limitation would be removed by telework and all essential functions of the employee's job were performed satisfactorily during the telework period, then the period of telework could be seen as an experiment that demonstrates that the accommodation was effective and satisfies all job requirements.

Starting point is 00:15:14 The interactive process must be flexible, cooperative, and truly interactive in order to determine what accommodations will work for an employer and employee. Based on our black box analysis here, it seems that the unseen mechanism that makes the interactive process work is some combination of cooperation, communication, and flexibility. While the specific results may vary widely depending on the factors mentioned here, it is clear that in the age of COVID-19, obtaining the right output from the black box, that is the ADA interactive process, requires a lot of input for all involved. If you'd like more information about this topic, please contact our office at Caring Associates PC on the web at capcowell.com or call us or email.

Starting point is 00:16:01 Thank you for listening and look forward to speaking to you next time.

Employee Survival Guide® - Thinking Outside the “Black Box”: The Interactive Process of Disability Accommodations During Covid-19

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