Articles Posted in COVID-19 Regulations

Last week, we posted Part 1 of this blog series.  Therein, you will find a discussion of employment discrimination laws that are potentially triggered when an employee requests to telework for tixeo-virtual-openspace-300x202health, safety, or disability reasons.  In Part 2, we examine how the state of businesses during the COVID-19 pandemic impacts the discussion of whether telework is a reasonable accommodation.

For many years, employers have asserted that regular attendance at the job site is an essential job function, and employers have often been successful with this argument and, consequently, avoided providing telework as a reasonable accommodation.  See, e.g., EEOC v. Ford Motor Co., 782 F.3d 753, 775 (6th Cir. 2015) (collecting cases).  Prior guidance from the Equal Employment Opportunity Commission (“EEOC”) stated that considerations as to whether telework is a reasonable accommodation “include whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients or customers is necessary; and whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace.”  Work at Home/Telework as a Reasonable Accommodation, EEOC Guidance (Feb. 3, 2003).  Because of the spread of COVID-19, many businesses have now operated on a telework model and done so successfully.  In fact, the Brookings Institute suggests up to half of American workers were working from home in April of this year.  Telecommuting Will Likely Continue Long After the Pandemic, Brookings Institute (Apr. 6, 2020).  Now that teleworking has been widely, and often effectively, used, the conversation around teleworking as a reasonable accommodation has evolved.

In September, the EEOC offered its guidance on the subject.  What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (Sept. 8, 2020).  Therein, the EEOC recognized, “There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19.”  Id. § D.1.  An employer, however, is not automatically required to grant telework as a reasonable accommodation simply because the employee was allowed to telework for the purpose of slowing the spread of COVID-19.  In sum, “[i]f there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation.”  Id. § D.15.  If the employee has such a limitation and teleworking is a reasonable accommodation, the employer must show telework imposes an undue hardship.

As mandatory work-from-home restrictions related to COVID-19 relax, many employees have asked to continue working remotely to protect themselves and their families. Understandably, manycsm_FlatDesign-Telework_c532b56131-300x196 employers are unsure how to respond to such requests on both a practical and legal level.  This two-part series addresses some legal considerations for employers and employees regarding teleworking as a way to minimize health risks posed by COVID-19 for individuals with disabilities.  In Part 1, herein, we provide an overview of the reasonable accommodation laws protecting an employee with a disability.

Whether an employer is required to allow an employee to telework to accommodate a disability triggers the Rehabilitation Act and the Americans with Disabilities Act.  Both Acts prohibit employers from discriminating against an otherwise qualified individual with a disability.  42 U.S.C. § 12112(a); 29 U.S.C. § 794(a).  Discrimination includes failing to reasonably accommodate an employee with a disability.  42 U.S.C. § 12112(b)(5).

Qualified Individual with a Disability

As Georgia schools and other businesses respond to open and operate safely in the face of the COVID-19 Pandemic, many are posting warning signs consistent with a new law in the state passed to protect them from liability.https://www.healthcarelaw-blog.com/files/2020/09/ewscripps.brightspotcdn.com_-300x169.jpg

Georgia-based Business and Healthcare Law Firm

This summer, Georgia joined many other states in passing a law to protect businesses including healthcare facilities and workers from liability from lawsuits brought by individuals or their survivors related to infections from or exposure to COVID-19 in visiting the premises of or obtaining healthcare services or personal protective equipment from those facilities, entities or individuals.  Senate Bill 359, signed by the Governor on August 5, 2020 provides that no healthcare facility or provider, entity or individual shall be liable for damages in an action involving a “COVID-19 liability claim” unless the claimant proves the actions of the healthcare facility, entity or individual resulted from gross negligence, willful and wanton misconduct, reckless or intentional infliction of harm.

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