Recently, I watched a lecture about reasonable accommodations under the Americans with Disabilities Act (“ADA”). The lecturer, who proudly proclaimed his pro-business bona fides, said, “Having a family member who is susceptible to COVID-19 is not a basis for a reasonable accommodation under the ADA. Deny.” And I thought, “Okay, sir. Either you have no children under age five, no elderly or sick relatives, no empathy, or no business sense—but I’ve got all four and will correct the record.” This article outlines a commonsense approach to reasonable accommodations requests made on account of COVID.
Employers and workers are returning to the workplace during a surge in the global COVID-19 pandemic, thereby risking exposure to the virus. Even if workers could survive a battle with COVID unscathed, they may live with family members who would not. This terrifying prospect puts pressure on already strained workers, who may feel compelled to leave the workforce if their employers do not accommodate them.
Savvy employers know that keeping a talented, productive worker requires balancing the demands of the business with the worker’s needs. So, how do employers navigate accommodation requests that may not be protected by the ADA? And how do workers request accommodations that are protected by the ADA?
The ADA requires employers to engage in a flexible, back-and-forth process to determine effective, reasonable accommodations for workers with disabilities, so long as the accommodation does not impose an “undue burden” on the employer. This “interactive process” involves negotiations about modifications to job duties and usually requires verification from the worker’s doctor. The worker must be able to do the job with orwithout the modification.
A disability that qualifies for ADA protection is any physical or mental impairment that substantially impacts a major life activity, such as breathing, walking, working, gastrointestinal functioning, standing, thinking, concentrating, etc. Notably, the ADA does not cover disabilities of family members. Nonetheless, workers may seek modifications to their job duties because of family members’ disabilities.
Imagine a scenario in which a worker says to an employer, “I need to work from home because my husband is immunocompromised and cannot risk exposure to COVID.” The employer could say, “No, that’s not a disability protected by the ADA. You need to come into the workplace.” The result is a worker who quits because they’ve been forced to choose between work and a loved one, or they feel deeply disrespected and disgruntled, which is bad for productivity.
A better option would be to say, “You know, that sounds like a really tough situation. While your husband’s health condition doesn’t qualify as your disability under the ADA, let’s discuss some options that can help you do your job safely.” The employer can then brainstorm some effective, alternative options. Even if there were no accommodations possible, it is important to engage in that conversation with the worker so they feel heard.
Let’s now imagine this scenario from the worker’s perspective: your boss has just denied your request to work from home because of your partner’s medical condition. Obviously, you want to tell them to take a hike, but you need that paycheck. Start by taking a look at the possible accommodations on the DOL’s Job Accommodation Network website and making an appointment with your health care provider.
At the appointment, explain how the stress of your partner’s vulnerable health and COVID-19 has affected your mental health. Perhaps it has affected you to the extent that you now have an anxiety disorder that impacts thinking, concentrating, and sleeping. Provide a reasonable accommodation form to your health care provider that outlines the accommodations you need. Be prepared to explain how the modifications would help you do your job, because the doctor needs to note that on the form.
Once your doctor has signed a medical verification form supporting your accommodation request, it’s time to submit it to HR. If you have a conversation with HR, you should follow it up with a polite email including something like this:
“Thank you for speaking with me about my reasonable accommodation request today. As you know, I am a person with disabilities because I have the health condition we discussed. This impacts my ability to do my current job duties [describe duties].
“I have requested, as a reasonable accommodation, modifications to my job duties, specifically [describe requested accommodations]. These will help me perform my job duties more easily. My doctor signed a note requesting these accommodations, and I am attaching a copy here. I look forward to working with you to determine an effective reasonable accommodation for me. I am dedicated to my work at the Company and look forward to continuing it safely. I will plan to touch base with you in a few days about my reasonable accommodation request.”
If the employer doesn’t respond or responds by terminating your employment, you should contact an employment lawyer who specializes in disability discrimination. It’s important to reach out to an employment lawyer as soon as you think your employment may be at risk.
For more information about your rights in the workplace, see the U.S. Equal Employment Opportunity Commission and U.S. Department of Labor for information on federal laws and the Illinois Department of Human Rights and Department of Labor for information on state law.