Accommodating Employees in a Pandemic Under the Ada and Other Anti-discrimination Laws

• Publication year: 2021

Accommodating Employees in a Pandemic Under the ADA and Other Anti-Discrimination Laws

by Christopher J. Cole.

As Hawai'i's businesses reopen or resume operations in the midst of an ongoing global pandemic, many employers may have received objections or requests for special treatment from employees arising out of actual or perceived threats to their well-being posed by the COVID-19 virus, vaccines, or mandates and restrictions. This article surveys the emerging legal trends and guidance from the past year, particularly in reference to federal and Hawai'i anti-discrimination statutes.

Interpretive guidance issued by the U.S. Equal Employment Opportunity Commission ("EEOC") in response to the COVID-19 pandemic leads the way,¹ with relatively few reported court decisions to date. This developing law reveals common themes. First, employers act on firm legal ground when their policies balance public health concerns and individual rights in a manner consistent with the recommendations and findings of leading public health authorities, such as the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention ("CDC"). Second, in addressing accommodation requests, employers' and employees' flexibility and creativity in collaborating on a solution is paramount. Finally, the law recognizes that employers have the right to assess and monitor the effectiveness, parameters or ongoing necessity of temporarily granted accommodations, such as remote work assignments, in light of the evolving public health situation, as well as advances in science and technology.

Overview of Relevant Statutory

Provisions

The most important statute in this area—and the primary focus of this article—is the federal Americans with Disabilities Act of 1990 (the "ADA"). The ADA prohibits discrimination against disabled workers, and covers private employers with 15 or more employees, as well as state and local government agencies. Hawai'i's Employment Practices Law, as amended, Haw. Rev. Stat. Ch. 378-1 et seq., generally tracks the ADA's provisions, and covers private employers with less than 15 employees. In addition, Title VII of the Civil Rights Act of 1964's ("Title VII") prohibition of religious discrimination and the Genetic Information Nondiscrimination Act of 2008 ("GINA'), along with their Hawai'i analogs set forth in Chapter 378 of the Hawai'i Revised Statutes, govern certain pandemic-related issues relating to vaccines and health-related inquiries, testing or evaluation. Federal and state occupational safety and health statutes, and their associated regulations, are also relevant to an employer's "general duty" to provide a safe workplace free of recognized hazards, but fall outside the scope of this article.

Like other anti-discrimination statutes, Part I of the ADA prohibits discrimination against qualified disabled individuals in the "terms and conditions of employment."² This gives rise to traditional causes of action, such as claims for disparate treatment and hostile work environment (harassment). The ADA goes a step further by expressly listing specific employment practices deemed to fall within the scope of prohibited discrimination, in some cases without having to prove specific intent to discriminate. Among those expressly prohibited practices are: limiting, segregating or classifying by disability; discriminatory contracts, arrangements or relationships; criteria or qualification standards that tend to screen out disabled individuals; medical or disability-related inquiries or examinations (with certain "safe harbor" exceptions); inaccurate and/or discriminatory testing; and discriminating against the relative of a disabled person.

In addition, the ADA has two specific mandates for employers: (1) the duty to provide reasonable accommodations unless the employer can show it would impose an undue hardship, and (2) the duty to segregate and safeguard confidential health information generated out of a medical inquiry or examination.³ The first of these mandates is arguably the ADA's centerpiece. An employer's duty to provide a reasonable accommodation that does not impose an undue hardship sometimes requires an employer to not only treat disabled workers equally compared to their nondisabled peers, but also in exceptional cases the employer must give them preferential treatment in order to "level the playing field."⁴

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Perhaps more so than for any other anti-discrimination statute, the ADA's application to a given set of facts depends on a raft of defined terms that are inter-dependent and refer to each other. These circuitous legal definitions can be confusing to employers and difficult for human resources personnel to apply in practice. Thus, a "disability" means (1) "a physical or mental impairment that substantially limits one or more major life activities of such individual," (2) "a record of such impairment," or (3) "being regarded as having such impairment." Congress amended the ADA in 2009 to construe the term "disability" broadly in favor of coverage, but clarified that no reasonable accommodation is required for individuals who are merely "regarded" as disabled under the statute's third prong. Furthermore, only "qualified individuals" with a disability are entitled to the protections of the ADA. A " qualified individual" is somebody who, "with or without a reasonable accommodation, can perform the essential job functions of the employment position that the individual holds or desires." "Reasonable accommodation," in turn, includes a non-exhaustive list of actions that employers must consider taking to enable an individual to perform essential job duties, such as "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices," adjusting policies and practices, or providing interpreters or readers for the individual. "Undue hardship" requires an employer to prove that the proposed "action [would require] significant difficulty or expense" in regards to factors such as the employer's size, resources, finances and operations, the number of employees at the facility, the remoteness of the facility, and the nature of the accommodation. As noted above, the ADA prohibits "qualification standards" that tend to screen out disabled individuals and certain medical or disability-related inquiries or examinations, but an exception is available if the employer can prove that the standards, criteria, inquiries, or examinations are "job-related and consistent with business necessity." Finally, a qualification standard is alsopermitted where necessary to prevent a "direct threat" to the health or safety of the individual or others.⁵

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The Reasonable Accommodation Process

Regulations promulgated by the EEOC under the ADA and more than three decades of legal precedent have established guidelines and principles that govern an employer's duty to provide a reasonable accommodation. In general, no duty to accommodate arises unless and until an employee or job applicant requests an accommodation. No "magic" words are necessary, but an employee must make the employer aware of the need for an accommodation. An express request is not required if an employee can prove that the employer actually knew of the employee's disability, knew or should have known that the employee experienced workplace difficulties as a result, and knew or should have known that the employee's disabilities prevented the employee from requesting an accommodation.⁶

Sometimes, a reasonable accommodation is readily identifiable and easy for the employer to implement. An employer may satisfy its legal obligation under the ADA by granting an individual's request, but the ADA does not force an employer to provide the precise accommodation that the individual wants or prefers so long as the employer offers to furnish an alternative accommodation that is "reasonable."⁷ Many times a solution is not so obvious and can give rise to differences of opinion or a more involved inquiry. In those cases, both the employer and the individual are mutually obligated to engage in an "interactive" dialogue.

In the interactive process, the employer and employee must exchange information with each other in an attempt to find a reasonable...