Accommodations in the Time of COVID

As employers contemplate return to work plans, the number of requests for accommodations — namely to continue to work remotely for those employees whose job functions permit telecommuting — are skyrocketing. 

Legal Obligation

Several laws address employers providing reasonable accommodations to employees to perform the essential functions of their jobs, provided the accommodation does not cause an undue hardship on the employer. At the federal level, employers may be required to accommodate employees on the basis of a disability (Americans with Disabilities Act (ADA), pregnancy (Pregnancy Discrimination Act), or religion (Title VII of the Civil Rights Act). States and cities may further require additional accommodations, including on the basis of care responsibilities. 

Federal Guidance

The Centers for Disease Control and Prevention (CDC), as well as the reopening plans from the White House, suggest that employers should consider providing accommodations to “vulnerable employees,” defined as those who are at increased risk for COVID-19. The CDC identifies this population as “older adults” and people with “underlying medical conditions.” 

While those with such medical conditions may be entitled to reasonable accommodations on the basis of a disability under the ADA and similar state/local laws, the guidance that older adults may be more at risk does not directly correlate to any legal entitlement to an accommodation. The Equal Employment Opportunity Commission (EEOC) has issued technical assistance for employers titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” on the provision of reasonable accommodations during the COVID-19 pandemic. Notably, even though the CDC has raised concerns about risk to older adults, the EEOC makes clear that employees are not entitled to a reasonable accommodation on the basis of age under the Age Discrimination in Employment Act. 

Further, the federal government has encouraged remote work or telework, even through its Families First Coronavirus Response Act (FFCRA), in limiting the ability to receive such paid leave if the employee is otherwise able to telework. 

Local Guidance

As local jurisdictions reopen, many places have done so in a phased method, where there are strong recommendations or requirements to allow employees capable of remote work to continue working remotely. 

For example, while offices are not permitted to reopen yet in San Francisco, the guidance for the eventual opening states that “Telecommuting is still highly encouraged.” Illinois’ reopening guidance states that as an “encouraged best practice” for office-based business in Phase Three to “[p]rovide reasonable accommodation for COVID-19-vulnerable employees, including but not limited to work from home (if feasible), reduced contact with others, use of barriers to ensure minimum distance between others whenever feasible or other accommodations that reduce chances of exposure.” 

Pre-COVID, employers occasionally received requests for accommodations relating to allergies or other sensitivities relating to air quality within the workspace. Now that there is more information coming out relating to indoor air quality as a factor in the spread of COVID-19 (see the CDC’s COVID-19 Employer Information for Office Buildings, referring to specific ventilation and HVAC systems), employers may expect to see more requests for information relating to air filtration systems, or potential requests for accommodations relating to air purifiers or the ability to work remotely in the absences of meeting certain standards. New York State is limiting reopening of certain businesses, such as malls, until the mall can certify that it has an HVAC system filtration rating of MERV-13 or greater (or provide certification of why that is not feasible). 

Another important consideration within state and local guidance is the requirement or recommendation to wear a face covering when social distancing is not permitted. Although not mandated at a federal level, many states and cities are requiring as a condition of reopening that employers establish mask-wearing when in the workplace, and even require employers to provide such face coverings at no cost to employees. 

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Employers should be mindful that some employees may seek an accommodation with respect to a face covering if there is a medical reason that the person is not able to wear a certain type of mask or a mask at all. New York City’s face covering guidance, for example, acknowledges that individuals who cannot wear a face covering due to a health issue may not be required to wear one. Thus, employers will need to consider whether they can safely accommodate employees via social distancing, or if that person is eligible for some other type of accommodation, such as telework. 

Travel Orders

Some states and cities are requiring a mandatory quarantine period upon returning from certain “hotspot” locations. New York and New Jersey’s travel advisory currently includes many states, whereby an individual returning to NY/NJ from these states must quarantine for 14 days. If possible, employers could allow employees to work remotely during the quarantine period. However, nothing in the travel advisory requires employers to accommodate such requests.

New York’s paid COVID leave law, which guarantees up to 14 days of paid leave for larger employers for employees subject to a mandatory or precautionary order of quarantine, applies only if the employee is unable to work or telework. New York has, however, amended its paid leave for employees who are required to quarantine to specifically exclude paid leave entitlements if someone willingly traveled to a state that is a “hotspot” or a country identified by the CDC as high-risk. 

Chicago has instituted a similar travel order, which applies equally to Chicago residents and travelers arriving in Chicago. Individuals who work within Chicago but are not city residents can continue to commute into the city; however, if they have traveled to one of the states on the restricted list, then the rules for essential workers who are Chicago residents will apply to the non-residents. Individuals who violate the order are subject to fines of $100 – $500 per day, up to $7,000. 

The federal FFCRA also provides for paid leave for certain employees subject to quarantine orders where the employee is unable to work or telework. There is currently no specific guidance from the DOL on how the FFCRA applies to state and local quarantine orders relating to travel, especially personal travel that will mandate quarantine. Arguably, a broad reading of the FFCRA would permit Emergency Paid Sick Leave (EPSL) to be used for any quarantine order, including for travel-based quarantine (assuming EPSL had not already been exhausted) when the employee cannot telework. In fact, Chicago’s FAQs on its travel order appear to suggest that employees subject to their travel order will be eligible for FFCRA leave.

What Should Employers Do?

As businesses contemplate bringing employees back to work — and consider a potential second wave of COVID — it’s important to remember that there may be legal obligations, best practices to consider, and practical employee relationships concerns in deciding whether to accommodate requests when employees are asked to return. Employers should also be mindful that in complying with reopening directives, there may be restrictions on bringing employees back to work. 

Nancy Gunzenhauser Popper is an associate in the employment, labor and workforce management practice, in the New York office of Epstein Becker Green. Nancy counsels clients on compliance with EEO laws, the Americans with Disabilities Act, the Family and Medical Leave Act, worker classification issues, and other federal, state, and local statutes governing the workplace.

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