EEOC Offers Updated Guidance on Accommodation and COVID-19

  • Apr 20, 2020
  • COVID-19
  • Dennis J. Merley

The Equal Employment Opportunity Commission (EEOC) has twice updated (April 9 and April 17) their guidance for employers on COVID-19.  The latest updates focus a great deal of attention on accommodating employees, either now of upon their eventual return from sheltering at home.

Interestingly, the EEOC acknowledges more than once that current circumstances may make it more difficult to offer long term accommodations, and that what might have been a reasonable request prior to the pandemic may no longer be reasonable now.

Nevertheless, the EEOC suggests that short-term accommodations might be available without undue hardship on the employer and that such accommodations should be considered.

Here are the highlights:

For jobs that can only be performed at the workplace, are there accommodations available for employees whose pre-existing disabilities place them at higher risk from COVID-19?

The EEOC suggests that “[l]ow-cost solutions achieved with materials already on hand or easily obtained may be effective.” They specifically mention “designating one-way aisles; [and] using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance….”

The EEOC also states that employers should consider temporary job restructuring, temporary transfers or modified work schedules to reduce exposure to the virus.

If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)?

The EEOC acknowledges that the pandemic is significantly stressful for many people, but for those preexisting mental health conditions such as anxiety or post-traumatic stress disorder, the pandemic’s disruption to daily life may be particularly difficult.

An interactive process is still needed for these workers, and accommodation still needs to be considered. Medical verification can be requested.

If an employee seeks an accommodation during the pandemic, can the employer still engage in the interactive process and request information from an employee about why an accommodation is needed?

The EEOC makes it clear that this aspect of providing reasonable accommodation has not changed – employers may still seek on whether the employee’s disability requires accommodation. They suggest that possible inquiries could include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position.

If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation?

Yes. – given the constraints imposed by the pandemic, employers can elect to limit the extent off the interactive process and devise a temporary or short-term accommodation strategy.

Employers can implement an end date for the temporary accommodation (e.g. a finite period of time or a when government restrictions affecting the workplace change). If and when the designated end date arrives, the employee may request extension of the accommodation, and the employer must consider it like any other accommodation request.

An accommodation may be an undue hardship if it poses “significant difficulty or expense.” What should be considered in determining whether an accommodation poses a “significant difficulty” during the COVID-19 pandemic?

The EEOC recognizes that the pandemic may make it more difficult to assess an employee’s needs or to procure certain items needed for the accommodation. In addition, an employer operating on a more limited basis may have difficulty finding temporary assignments for the employee or modifying the employee’s work assignments.

If an accommodation currently poses an undue hardship, the EEOC suggests that as always, the employer and employee should discuss alternatives.

What should be considered in determining whether an accommodation poses a “significant expense” during the COVID-19 pandemic?

Typically, employers have difficulty maintaining that a particular accommodation entails significant expense in the context of their overall budget and resources. However, the EEOC acknowledges that the loss of income during a pandemic is a relevant consideration, as is the duration in which the income loss might last. In that event, lower cost accommodations should be considered.

Bottom Line

Judging from their recent guidance, the EEOC appears to recognize that a pandemic poses unique challenges and that their ordinary expectations for employers should be relaxed a bit.