by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
November 02, 2020
We have previously written about ADA and leaves of absence, particularly with respect to the duration of such leaves, here and here. Now let’s look at special issues when COVID is involved. Sadly, there is nothing humorous about this topic so don’t expect the levity I often try to inject into our blog posts.
Not Much Court Guidance - Yet
Although many lawsuits relating to COVID issues have been filed, very few involving ADA claims have progressed to the point of a written judicial opinion and, as of this writing, none address a request for leave of absence as a reasonable accommodation. A small number of courts have recognized that during the COVID-19 pandemic, whether a plaintiff has a disability should be judged by the totality of the circumstances, including the heightened risks of an impairment caused by the pandemic. See Peeples v. Clinical Support Options, Inc. (D.Mass. 09/16/2020); Silver v. City of Alexandria (W.D. La. 07/06/2020); and Valentine v. Collier (S.D.Tex. 07/02/2020).
What the EEOC Says You Should Know
At this time, the best resource available for understanding COVID and the ADA is the EEOC’s Technical Assistance Questions and Answers, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (“EEOC, What You Should Know”). Here is some guidance regarding leaves of absence from that document.
Confidentiality. If an employee is on a COVID-related leave of absence, you cannot disclose the reason for the leave, just the fact that the individual is on leave. EEOC, What You Should Know at B.7. (Of course, this applies to the reason for any ADA accommodation or medical absence from work.)
Assessing the Length of a COVID Leave of Absence Accommodation. COVID itself may or may not be a disability, depending on the length and severity of the employee’s illness. The ADA regulations provide that you must consider the condition under which the individual performs the major life activity; the manner in which the individual performs the major life activity; and/or the duration of time it takes the individual to perform the major life activity to determine whether the employee’s condition substantially limits a major life activity. 29 C.F.R. § 1630.2(j)(4). So, engage in the usual ADA inquiries and get medical documentation to determine whether the employee’s COVID-19 is a disability and, if so, what accommodations are appropriate.
A difficulty presented by COVID is that, at the outset of an infection or even as it progresses, the employee’s provider may not be able to predict how long the employee will be incapacitated by the disease. Some cases are mild or even asymptomatic, which would clearly not be a disability and any absences should be dealt with through the employer’s regular attendance, paid sick leave, other time off policies, and state and federal laws such as the FMLA, if applicable.
Some individuals, on the other hand, remain ill and incapacitated by COVID for extended periods, referred to as the “long haulers.” At some point continued leave may no longer be a reasonable accommodation or may impose an undue hardship. Not surprisingly, this determination needs to be made on a case-by-case basis. The employer does have in its favor the principle that an indefinite leave of absence with no reasonably certain end date or range is not a reasonable accommodation. Be cautious (and generous, if possible) before taking action that might make it a COVID-19 test case for failure to accommodate.
Leave as a Temporary Accommodation. Given the pandemic and all the new considerations that come into play, you may find yourself in a position of having to provide a leave of absence on an emergency or short notice basis. The EEOC makes clear that employers can do this without the accommodation becoming “permanent.” You can set employee expectations up front that this is a temporary or trial accommodation and set an end date, subject to further consideration at that time. This gives the immediate employee the relief he or she needs and allows time to collect additional medical information if needed and to consider other stay-at-work accommodations.
Moreover, you need not fear that an accommodation granted during COVID may become required on an ongoing basis. The EEOC recognizes that the pandemic may require some employees to request an accommodation because of a pre-existing disability that puts her at greater risk during this pandemic or because the employee has a disability exacerbated by the pandemic. This doesn’t mean that you have to continue the accommodation once the COVID-related need no longer exists. EEOC, What You Should Know at D.7.
High Risk Family Members. Many employees have someone in their household how has a high risk of COVID complications because of an underlying medical condition. This is not grounds for leave of absence as an accommodation. Be aware, however, of the association provision of the ADA, which prohibits discrimination against an employee based on his/her association with an individual with a disability – and “association” extends well beyond just family members to include roommates, friends, teammates, etc. In the COVID leave context, this means that if an employer allows an employee without a disability to take a leave of absence to avoid exposure to COVID (for example, due to the employee’s simple fear of contracting COVID but without a high-risk factor) you will need to consider allowing the employee associated with someone with a high-risk condition leave of absence on the same terms. EEOC, What You Should Know at D.13.
Employees with High-Risk Conditions. The CDC has identified conditions which place an individual at high risk of serious complications if they get COVID-19. Most of these conditions may also constitute an ADA-protected disability (exceptions being age, normal pregnancies, and in some cases, obesity). An employee with one of these conditions may never have needed an accommodation at work prior to COVID-19 – for example, an employee with diabetes or high blood pressure that is well controlled with medication. Now, the risk of severe illness may require you to allow a leave of absence for an individual with a high-risk condition to avoid exposure as an ADA accommodation.
However, as with the ADA under normal conditions, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action. Don’t act out of paternalistic concerns; the ADA does not allow you to exclude the employee—or take any other adverse action—solely because the employee has a high-risk condition. Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation – and the threshold to establish a direct threat is very high. EEOC, What You Should Know at G.3. and 4.
Older Workers and Leave of Absence. The CDC includes age over 65 as a high-risk condition. However, the Age Discrimination in Employment Act does not require an employer to provide an accommodation due to age. Under the ADA you cannot exclude an individual from the workplace based on being 65 or older, even if the employer acts for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19. However, you can provide greater workplace flexibility to older workers who desire it even if that results in younger works being treated less favorably. Remember, too, that age may bring with it medical conditions that do constitute a disability and the employee may be entitled to an accommodation, possibly including leave of absence, for that reason. In that case, the employee, as in other cases, must make the need for an accommodation known to the employer. EEOC, What You Should Know at H.1. and 2.
Upon Return to Work from a COVID-Related Leave of Absence. When a worker is ready to return to work following a COVID-related leave of absence, you can require a fitness-for-duty note from the employee’s doctor. This can include verification that the employee is no longer contagious. Due to the pandemic’s demands on the health care industry some employees may have difficulty seeing a provider for this purpose so you might want to be flexible in this requirement and the form of verification you will accept. EEOC, What You Should Know at A.5.
Alternatives to Leave of Absence. Remember that an employee is not necessarily entitled to a leave of absence if there are other accommodations that will enable him or her to perform the job without jeopardizing the employee’s health or medical treatment. Where exposure to COVID is the concern, many of the measures you are already taking to provide a safe workplace may serve as an effective and reasonable accommodation – depending on the facts such as the employee’s job duties and the nature of the workplace. The EEOC suggests:
If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.
Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. 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 to others in the workplace or while commuting.
EEOC, What You Should Know at D.1.
For additional ideas and assistance, check out the resources available from the Job Accommodation Network, see OSHA’s Guidance on Preparing Workplaces for COVID-19, or consult your state or local health agency.
MATRIX CAN HELP! Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including assessment of leave of absence requests in the time of COVID. You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more. Our expert team of ADA Specialists is at the ready with practical advice and expert guidance. To learn more, contact your Matrix or Reliance Standard account manager, or send an email to [email protected].