First, congratulations to the Tampa Bay Buccaneers for winning the Super Bowl Sunday. What an amazing record Tom Brady has developed over the years. Between the Rays, the Lightning, and the Buccaneers, Tampa Bay has become quite the sports town.

 

Turning to the blog entry of the day, last week I attended a webinar as part of the African-American Conference on Disabilities. It was also hosted with the Arizona Center for Disability Law, which is the protection and advocacy group for the State of Arizona. They had an excellent panel consisting of an EEOC attorney, an attorney from the Arizona Center for Disability Law, and a plaintiff employment attorney. The panel talked about title I issues in the context of Covid-19. What set this webinar apart from other webinars that I have attended was that it focused on questions and answers from the audience and much less so on material presented by the attorneys, though there was some of that. With permission, I wrote down all the questions that were asked and received permission to post the questions here, without naming names of course, and turn it into a blog entry. I also added two questions of my own. So, let’s play 21 questions. Finally, there are no categories to this blog entry, rather there are just questions posed and my answers.

 

  1. May an employer require vaccinations? Answer: yes, but it gets complicated. Unless you are a healthcare entity, most management labor and employment lawyers are recommending that you focus on encouraging vaccinations rather than on mandating vaccinations. You can require vaccinations, but you will have to deal with requests for accommodations if a person has a disability that makes getting vaccinated an issue or if the person has a religious objection based upon a sincerely held belief. An open question is just how much encouragement can you offer before it turns into something that is not voluntary, especially if you have a type of wellness plan where the EEOC has said that incentives can only be offered if they are de minimis. A variety of groups are asking the EEOC to clarify when encouragement turns into something involuntary with respect to Covid-19 vaccination.
  2. Do you have to accommodate an employee who does not have a disability but who has a high risk family member? Answer: no. The ADA certainly protects people who associate with people with disabilities even though they do not have a disability themselves. However, those provisions do not require that the person who associates with the person with a disability be reasonably accommodated. That said, we have discussed, such as here185185197198198208, situations where an employer ran into trouble because they did not even engage in the interactive process with a person who associates with a person with a disability. So while you do not have to reasonably accommodate a person without a disability who associates with someone who does have a disability, you do want to engage in the interactive process with an individual to see if something can work. The EEOC also recommends that approach as well.
  3. Is remote work a reasonable accommodation for a person being called back into the office where they have a disability that puts them at risk of Covid-19 or associates with someone with a disability? Answer: see above for the situation where a person associates with someone with a disability. With respect to an individual who has a higher risk if they get Covid-19, the question is going to come down to whether essential functions of the job includes attendance or whether attendance is just a personal preference. Before Covid-19, courts were usually holding that attendance was assumed to be an essential function of the job. Now, that argument simply can’t be made in many cases because the essential functions of the job are being done remotely for quite a period of time already. With respect to figuring out whether attendance is an essential function of the job, I always like to look to the Samper factors, which we discussed here186186198199199209. The better data an employer has that actually working in the office has some added advantage over working remotely, the better off the employer is going to be in arguing that attendance is an essential function of the job and not a personal preference.
  4. Can you treat Covid-19 the same way as you do the flu or mononucleosis. Answer: Well, the question really is to my mind whether Covid-19 is a disability. It very well may be in many cases. A disability is defined under the ADA, 42 U.S.C. §12102187187199200200210(1), as a physical or mental impairment that substantially limits one or more of life major activities, has a record of such an impairment, or is regarded as having such an impairment regardless of whether a physical or mental impairment actually exists. With the amendments to the ADA, it is quite possible that Covid-19 positivity would be a disability. The question is going to be whether the person is substantially limited in a major life activity as compared to most people in the general population. They very well might be. Another question is whether Covid-19 positivity would be a temporary disability not protected under the ADA. A disability of short duration can be an ADA disability. A preventive law step that I like to use is to borrow from the regarded as exception and ask whether the disability is both temporary AND minor. With Covid-19, you have a fair amount of Covid-19 long haulers. So, it can often be debatable whether the disability is temporary. Also, the disability may not be minor either. Again, the temporary and minor standard is something that I am borrowing from the regarded as exception as a matter of preventive law and using something for preventive law purposes is not the same as a legal standard. So where you have a person diagnosed with Covid-19, an employer definitely wants to engage in the interactive process for sure.
  5. Can you require a Covid-19 positive employee to work? Answer: Recently, OSHA came out with guidance on Covid-19, here188188200201201211. So, you definitely want to review that guidance before requiring a Covid-19 positive employee to work, particularly at a worksite.
  6. Can you just go ahead and fire a person who is positive for Covid-19? Answer: that would be a big mistake because Covid-19 positivity may very well be a disability as discussed above. It also may activate the FMLA as well, in addition to other laws passed recently to deal with the coronavirus crisis. Best bet is to engage in the interactive process and seek knowledgeable legal counsel with respect to the variety of laws that are activated by this situation.
  7. What is an undue hardship? Answer: in the title I area, an undue hardship can either be financial or logistical. With respect to financial, the entire resources of the employer are looked at. Accordingly, financial undue hardship is very difficult to show. With respect to logistical undue hardship, the best bet is to borrow the concept of fundamental alteration from title II and title III. In assessing logistical undue hardship, you are looking at whether the reasonable accommodation would fundamentally alter the nature of the position (which would lead to the conclusion that the employee is no longer qualified/otherwise qualified per the ADA), or fundamentally alter the employer’s operations. Remember, an employer does not have to reassign essential functions of any job to someone else. Marginal functions can get reassigned. Utilize the interactive process. If you get stuck, call the Job Accommodation Network, here189189201202202212.
  8. For employees who are deaf or hard of hearing, what about face shields and clear masks? Answer: the OSHA guidance talks about how these may be utilized for such employees. Regardless of whether you read lips, masks are a problem for the deaf and hard of hearing. If the person is a lip reader, it is obvious why masks are a problem. If the person is culturally deaf, masks are still a problem because the face is often used the get context for the signs. One problem you may run into is clear masks and face shields may not be medically rated the same as other kinds of masks that people wear. I just read an article on LinkedIn that Ford is developing a clear mask that can be certified as N95. Such a mask cannot come soon enough as far as I am concerned. Even so, employers are still under the obligation to figure out how they can effectively communicate with the deaf or hard of hearing employee. As a side note, do not use the term “hearing impaired,” as that term generally drives people in the deaf and hard of hearing community nuts. For example, nothing impaired with my hearing, rather it just doesn’t work the way a person with typical hearing does.
  9. Can you force someone onto FMLA rather than reasonably accommodate them? Answer: This is a topic that has come up in our blog before, such as here190190202203203213. Most people want to work. So, you are better off if you engage in the interactive process to see if the person can continue to do their essential functions of the job with or without reasonable accommodations rather than forcing them onto FMLA. If FMLA leave is the best choice after an interactive process, that is okay. However, forcing a person onto FMLA without an interactive process is risky.
  10. What if the employee is not your employee but works for a staffing company? Who has the obligation to accommodate the person? Answer: It is quite possible that both the staffing company and the company the person is working for have the reasonable accommodation obligations as joint employers. I know of one staffing company that takes a very aggressive stand in making sure that its employees are reasonably accommodated one way or the other. On a related note, last week we discussed the situation of where you had two companies that were so intertwined that the court held they were a single integrated employer, here191191203204204214.
  11. What if you have less than 15 employees but you took federal funds. Do you have to deal with federal disability nondiscrimination laws? Answer: yes. You will have to deal with §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794192192204205205215, which has been held by the courts to apply to employment situations. The remedies available under that law include the full range of damages but not punitive damages. Injunctive relief and attorney fees are also possibilities as well. Keep in mind, taking federal funds to stay afloat through the coronavirus relief laws that were passed qualifies as taking federal funds. If an employee situation is involved, title I of the ADA would be the standard that would be used to figure out whether disability discrimination has occurred.
  12. How long are psychological evaluations valid for? Answer: this is something I see come up all the time in the educational setting, whether it be K-12, secondary, or postsecondary education. The question is what is the disability that you are dealing with. Many MH/LD disabilities are static. So if you are dealing with a disability that is static, requiring psychological evaluation to be current doesn’t make a lot of sense. You don’t want to be in a situation where you are requesting excessive documentation as that is something you are not allowed to do. You can of course receive documentation from healthcare professionals and other individuals to help assess the disability. I would be careful about insisting on current psychological evaluations just for the sake of the fact that the psychological evaluation is not current, especially where the disability is of the kind that doesn’t change much over time.
  13. Three secretaries are all working remotely but an employer requires a secretary that can’t come in to come in. Answer: definitely a potential problem. The first question I have is whether the secretary who is required to come in has a disability. If she does, then you need to engage in the interactive process to figure out if there is a win-win solution. If he or she does not and is associating with someone who does, the interactive process is highly recommended even though reasonable accommodations are not required. If it is the person with a disability who has a higher risk of Covid-19 that is being forced to come in and not the secretaries without a disability, then that is a problem.
  14. When should a person disclose a disability? Answer: this is a highly personal call. It depends on whether the disability is hidden or obvious. It also depends upon the type of employer. Certain employers may be more receptive than others. It is not unusual for a person with a disability to wait for the job offer and then start work before disclosing. Many people with disabilities may not have a choice but to disclose at the interview process. Employers must make reasonable accommodations for people with disabilities to access the interview process. Again, a real personal call. There is no obligation for the person with a disability to disclose. Whether a person with a disability discloses at all is something that I discussed in this blog entry that I posted on the Federal Bar Association blog, here193193205206206216. It is certainly a worthwhile read for understanding when a person with a disability decides to disclose. I can tell you from the legal side it is much better to disclose early because that way the employer is on notice. If they don’t know the person has a disability and there are performance issues, then the employer is not on the hook for what it did not know.
  15. Do I have the obligation to reassign duties that a person with a disability can’t do to other staff? Answer: marginal duties can be reassigned but you are under no obligation to reassign essential job functions.
  16. If a person can’t do the essential functions of their current job with or without reasonable accommodations, must the employer reassign that individual to a vacant position where they can do that job’s essential function with or without a reasonable accommodation? Answer: this entirely depends upon the Circuit you are in. In the Seventh Circuit, the answer is absolutely. In the 11th Circuit, the answer is no. That is, in the 11th Circuit you do want to allow the person with the disability to engage in the competitive process but you are not required to reassign that individual to a vacant position whose job they can do the essential functions with or without reasonable accommodation when they can no longer do their current job with or without reasonable accommodations. Eventually, this question will go up to the Supreme Court. My guess is that the Supreme Court would likely take the 11th Circuit approach, but you don’t know that for sure. That said, you can prevent a lot of problems if you engage in the interactive process and if you as the employer work with the person with the disability to figure out what the possibilities are even if you don’t go as far as reassigning the individual. I discussed this issue here.237207217
  17. Does the employee get the accommodation they want? Answer: no. The accommodation that gets given is the result of the interactive process. Whoever blows up the interactive process is the one that faces the consequences.
  18. What if an employee needs railings, but the employer offers a wheelchair instead? We just saw something similar in the blog entry that was just posted on understanding the ADA last week. Here, you may have two different titles at work. You may have title I with respect to the employee and you may have title III with respect to non-employees. Keep in mind, the applicable ADA architectural guidelines, ADAAG. There is no substitution for the interactive process. Be sure to get into the mindset of a person with a disability. There is a world of difference between railings and wheelchairs on a psychological level that you might want to consider.
  19. If I am an employee and need a reasonable accommodation and already have an attorney, do I copy in my attorney on the reasonable accommodation request? Answer: this is a matter of strategy for you to discuss with your attorney. There isn’t anything wrong with copying in the attorney but it does alert everyone to a more adversarial situation. You definitely want to work with your attorney on this. It is possible that the attorney might ghostwrite the reasonable accommodation request. What exactly happens here is going to depend upon the way the particular attorney wants to do it, the reputation of the employer, and you as the client. There isn’t a right answer per se to this question.
  20. Here is a question that I just thought of so as to make it 20 questions. I have an employee who must as part of their job deal with software as a service platforms that are not accessible to persons with disabilities. Since the software as a service platform is not mine, do I have the obligation to reasonably accommodate that employee? Answer: yes unless you can show an undue hardship (logistical or financial). If you are buying platforms from other companies for use by your employees, it would be a good idea to have indemnification/reimbursement provisions in that contract. Keep in mind, the ADA is a nondelegable duty, as we discussed here194194206207208218. So, the employer does have the obligation to reasonably accommodate that employee unless it can show an undue hardship. The gold standard but not the legal standard for Internet accessibility is WCAG 2-2.1 Level AA. The WCAG standard can be found here195195207208209219. The software as a service providers certainly need to be aware of those standards if they are not already so aware. Also, always engage in the interactive process.
  21. Here is another question I just thought of. I have an employee whose experience with the pandemic was not easy. The employee now wants to bring in emotional support animal to work. I thought emotional support animals were not protected by the ADA. Is that right? Answer: not exactly. While it is true under title II and title III of the ADA, such as we discusse d here196196208209210220, and for that matter the Air Carrier Access Act, under its most current regulations, as discussed here197197209210211221, the EEOC and title I of the ADA are silent. What you want to do, as we discussed here198198210211212222, is handle such a request the same way you would any request for reasonable accommodations. Then, engage in the interactive process to see if that is the only possibility that will work. There is a debate going on about whether the animal needs to be related to a specific essential function of the job or not. At the end of the interactive process and if nothing else works, then you may need to consider an emotional support animal. If the animal is a service animal under title II and title III regulations, the employer would be wise to allow the animal as a reasonable accommodation. Finally, preventive law means to look at the animal in terms of work performance and not in terms of how it relates to an essential job function, especially if it is a service animal.

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