Tough Issue Arising as Workers Return: At-Risk Employees and the ADA

As economies reopen and employees return to the workplace, we know that no matter what precautions employers take, some safety concerns will remain. In particular, employers will be challenged by how to protect employees with underlying health conditions who are at increased risk for severe illness, if they were to contract COVID-19.

Note that I am not referring to employees who have been diagnosed with COVID-19 or have some other health issue for which they are currently being treated. Employees in that situation are likely covered under an employer's sick leave or short-term disability policies. Rather, I am talking about employees who are generally healthy but may have chronic conditions like diabetes or hypertension that have been identified as being high-risk conditions by the CDC. While the workplace may be deemed safe for other employees to return, potential exposure to COVID-19 puts employees with these kinds of underlying conditions at significant risk. As worksites open and these employees express concerns about their safety, employers will need to follow their disability and employment policies to manage and track these situations.

Of course, these policies were not designed with COVID-19 in mind. In the typical pre-pandemic scenario, when someone is asked to return to work but their health status doesn’t permit them to do their regular duties, the ADA “interactive process” is triggered. Through that process, the employer and employee engage in a dialogue to determine if the employer could make an accommodation that would enable the employee to return to work. Theoretically, the employee could ask for anything; practically, the employer will only grant an accommodation if the request is “reasonable”. Determining whether a request is reasonable may be something of a judgment call. A request from an office employee to work from home following foot surgery is likely to be granted. A similar request from a retail or manufacturing employee probably would not be. If a job requires standing for long periods of time or lifting boxes, the employer may agree to an accommodation where the employee is given breaks to sit or is put temporarily into a different role on the shop floor.

In the COVID-19 context, assuming working from home is not an option, the employer may suggest accommodations that would reduce risk for an employee. An employee who normally interacts with customers (e.g., a server or retail associate) may be offered a behind-the-scenes role (e.g., work in the kitchen or stockroom). The problem is that for people with chronic health issues that put them at serious risk if they were to contract COVID-19, it will be difficult to find an adequate accommodation due to the nature of the virus. Reducing or eliminating interactions with customers may not be enough if the employee still needs to take a bus to work or will still interact with colleagues. To complicate matters further, the types of conditions that elevate risk – diabetes, obesity, hypertension – don’t just go away. In the typical pre-pandemic scenario, someone has an injury or illness and needs a temporary accommodation. How long would a COVID-19 accommodation continue?

Given that the normal ADA interactive process is already complicated and relies on judgment calls, employers need to prepare for what is likely to be a sharp increase in the volume of requests – and the likely possibility that, in many cases, leave may be the only accommodation possible:

  • Handling accommodation requests. Given that employees with underlying medical conditions are at increased risk for getting severely ill, we expect that the frequency and complexity of ADA accommodation requests will increase. To meet those requests, employers will need to increase their own capacity or rely on their disability and leave vendors who may offer ADA administrative support services. These vendor services can rapidly expand an employer's capacity to meet the ADA requests, and also ensure consistency and reduce compliance risk.
  • Leave as an accommodation. It seems virtually impossible for an employer to offer accommodations that make returning to the workplace safe for all at-risk employees. For these cases, employers will need to consider leave as an accommodation – something that's been required by the ADA for many years. However, if the only accommodation is unpaid leave, it puts employees in a very difficult situation of either returning to work in order to get paid and accepting that additional, potentially life-threatening risk, or staying home and taking unpaid leave.

It's important to keep in mind that short-term disability plans will not provide income replacement to those who are seeking an accommodation but are otherwise able to work. As COVID-19 accommodation requests become more common, employers will need to focus on ADA compliance -- but should also review and potentially revise their paid leave policies to address these complex situations.

Rich Fuerstenberg
by Rich Fuerstenberg

Senior Partner, Health, Mercer

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