Disability Accommodation and COVID-19: Ten Emerging Issues to Consider

As we enter the third year of the global COVID-19 pandemic, many U.S. businesses are implementing long-delayed return-to-office plans and hoping to establish a new equilibrium.  Public health experts, economists and policymakers increasingly speak of “endemicity,” a phase in which COVID-19 transmission rates fall to a constant but manageable baseline level, perhaps confined to certain regions, rather than actively accelerating and spreading throughout the population in epidemic fashion.  Some refer to this next phase as “living with COVID” or even consider it a “return to normal.”

In the employment law context, however, “living with COVID” does not represent a return to normal.  Rather, developments since 2020 make clear that human resources professionals can expect—and are already encountering—numerous COVID-19 related challenges to their disability accommodation practices.  This Insight reviews a “top ten” list of emerging issues in this area, broadly relating to increased claims for accommodation, administering the interactive process, and assessing the reasonableness of proposed accommodations.

Issues Related to Increased Claims

The ADA Amendments Act of 2008 (ADAAA) was explicitly adopted to increase the population that would qualify for coverage, and possibly accommodation, under the Americans with Disabilities Act (ADA).  Since the ADAAA’s adoption, employers generally have absorbed the notion that the term “qualified individual with a disability” is to be construed broadly.  Even so, developments during the COVID-19 pandemic have expanded the potential pool of covered individuals who may seek the ADA’s protections far beyond what even experienced practitioners may have anticipated.  Three of our “top ten” emerging issues fall into this category.

1.        New Requests Based on COVID-19 and “Long COVID”  

It should not surprise anyone that a virus that has infected more than 60% of the U.S. population, and claimed the lives of 1 million Americans, will result in additional direct claims under the ADA.  We learn more almost daily about the direct impacts of COVID-19 infection on different bodily functions, as well as the constellation of prolonged health conditions that have been termed “long COVID.”  Employees have begun to bring ADA claims based on impairments brought about by COVID-19 and its after-effects.¹ While most COVID-19 infections are brief, especially for those who have been vaccinated, the Equal Employment Opportunity Commission (EEOC) has noted that “[t]he limitations from COVID-19 do not necessarily have to last any particular length of time to be substantially limiting,” and that restrictions that last several months may qualify.²  In addition, the mitigating measures or treatments used for COVID-19 may themselves have negative side effects that substantially limit an individual’s major life activities or bodily functions.³  Of course, whether a COVID-19 infection directly qualifies as an actual disability will require a case-by-case assessment.⁴

2.        New Requests Based on Pre-Existing (but Undisclosed) Physical Conditions

The ADA defines a covered “individual with a disability” to include a person who “has a physical or mental impairment that substantially limits one or more major life activities.”⁵  Importantly, “a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”⁶ Because these definitions cover virtually all chronic conditions and diseases, and because the ADAAA precludes consideration of almost all measures that mitigate the impact of such impairments, observers often note that virtually anyone in a workplace might qualify for the ADA’s protections.  Historically, however, employees whose chronic conditions were well-controlled by mitigating measures rarely have needed to invoke the ADA if their conditions were not substantially limiting.

On the other hand, the EEOC has long recognized that certain pre-existing conditions could make individuals more susceptible to serious illness and complications during a pandemic.  In March 2020, the EEOC updated its guidance on “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” which it first issued during the spread of the H1N1 virus.⁷  The Pandemic Preparedness Guidance cautions employers against making proactive inquiries “to identify those at higher risk of influenza or coronavirus complications,” but also anticipates that such employees may voluntarily disclose, or at least seek accommodation in connection with, their high-risk status.⁸  The EEOC’s subsequently issued guidance (“What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”) further cautions that an individual’s COVID-19 infection may actually “worsen the individual’s pre-existing condition that was not substantially limiting, making that impairment now substantially limiting.”⁹ 

The Centers for Disease Control and Prevention (CDC) lists numerous conditions that can place an individual at higher risk of complications from COVID-19.¹⁰ This list includes conditions that are relatively prevalent among U.S. adults, such as Type 1 and Type 2 diabetes, obesity, hypertension, pregnancy and physical inactivity.  Given how much is still unknown about the long-term effects of COVID-19 infection and its interaction with these conditions, it is foreseeable that many individuals who never disclosed such conditions to their employers will now seek accommodation to reduce their risk of contracting COVID-19 and experiencing long-term complications.  Employers therefore should prepare to deal with an increase in inquiries from employees who previously did not need or seek accommodation prior to the pandemic.  Employers may need to provide reasonable leeway for employees who wish to continue certain protective measures, given continuing COVID-19 transmission risks.¹¹

3.        New Requests Based on Psychological, Emotional and Mental Health Issues

From its inception, the ADA has protected individuals with mental impairments as well as physical ones.  Employers have long struggled with how to interpret the ADA in the context of mental illness, particularly when an individual claims to be impaired in the major life activities of socializing or working with others.  Covered mental impairments may include any mental or psychological disorder, including intellectual disabilities, emotional or mental illnesses, learning disabilities and neurodiversities.¹² 

Given this scope of coverage as well as the societal disruption created by the pandemic, employers should anticipate an increase in ADA claims based on psychological and emotional impairments.  Throughout the pandemic, employers have faced claims from individuals who are concerned about their own perceived risk of contracting COVID-19, or of transmitting it to vulnerable family members, and claim that their underlying anxiety or depression has been exacerbated.  As a general matter, the EEOC notes that “employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.”¹³

Moreover, in settings where employees have been working remotely for two years or longer, many have suffered the effects of prolonged social isolation on their mental health, and are finding it difficult to readjust to working alongside others in person.  These difficulties may be compounded for those neurodiverse employees who need extra support in returning to a physical workplace after a long period of telework.  Even the COVID-19 vaccine complicates this picture, given the polarization that surrounds it:  on the one hand, vaccinated employees express anxiety about working with unvaccinated colleagues, while on the other, some unvaccinated employees have sought medical exemptions from vaccine requirements based on anxiety about the novelty of the vaccines themselves.  As we continue “living with COVID,” employers should expect to see an increase in ADA requests tied to mental and emotional health issues.¹⁴

Issues Related to Administering the Interactive Process

With so many Americans working remotely over the past two years, many circumstances that previously might have yielded accommodation requests, such as employee or family illnesses and unexpected school closures, have flown beneath the radar (or perhaps, just below the webcam).  Many employees with remote work arrangements have simply managed these circumstances without formally filing for accommodation, perhaps by extending their work hours or weeks.  After two years with relatively fewer requests, even the best accommodation management team might need a refresher course to get back up to speed.  But there have also been short- and long-term legislative and regulatory changes during the pandemic that require additional attention.  Three of our “top ten” emerging issues relate to administering the interactive process.

4.        New Types of Time Off and Leaves of Absence

Unsurprisingly, accommodation requests often arise when available leaves have been exhausted and an employee is still coping with the circumstance that gave rise to the leave.  It is vital to understand exactly when available time off runs out in order to anticipate when accommodations may be sought, especially because leave itself may be an accommodation in some circumstances.¹⁵

This area has been complicated during the pandemic by an explosion in new types of leave, expanding both the pool of employees who may take time off and the reasons they may seek to do so.  Some leaves were specifically created to address pandemic-related circumstances, as in California and New York State, which have established discrete paid COVID-19 sick time and vaccination time under state law.¹⁶  Other laws are more general and coincidentally became effective during the past two years, as in Connecticut¹⁷ and the District of Columbia,¹⁸ which each adopted new paid family and medical leave laws, and Maine¹⁹ and New York, which created new forms of paid time off.²⁰  Some leaves have both come and gone during this period of time, including the Federal Families First Coronavirus Response Act, which ended in 2021, and numerous local public health emergency leave ordinances, or PHELOs, that expired in tandem with the underlying emergency declarations. 

Administrators will have their hands full not only identifying the various leave and time-off requirements that may apply to a given employee, but also interpreting them.  Regulations and formal guidance may be scant or have been hastily compiled and may not provide the detail needed to address complex accommodation requests or repeat circumstances.  In addition, there may be numerous overlapping leave entitlements under different state and local laws, with little guidance available to assist employees in making a request or employers in knowing what is required of them.

5.        State Approaches to the COVID-19 Vaccine, Part 1

Soon after the COVID-19 vaccines were authorized by the FDA, the EEOC issued guidance stating that “federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations.”²¹  Under federal EEO laws, employees may seek a medical exemption from a workplace vaccine mandate based on a condition or disability that contraindicates the vaccine.  However, several states have taken a different path with respect to the COVID-19 vaccine, creating a patchwork of sometimes conflicting rules, such that an employer cannot simply apply its ADA process when evaluating an employee’s medical exemption request.²²  For example:

• Montana treats COVID-19 vaccination status as a protected class, while Tennessee permits employees to object to COVID-19 vaccination for any reason.²³  In either case, an employee would not have to raise a medical or disability concern in order to obtain an exemption under state law, whereas the ADA would so require.
• Alabama, Arkansas, Florida, Indiana, North Dakota, South Carolina, Utah, and West Virginia have all created legislative exemptions from vaccine mandates based on recovery from past COVID-19 infection.²⁴  Having had COVID-19 does not contraindicate the vaccine; the CDC cautions that “No currently available test can reliably determine if you are protected after being infected with the virus that causes COVID-19” and advises individuals to obtain the COVID-19 vaccine even if they have previously had the virus.²⁵ Nor does every case of COVID-19 rise to the level of a qualified disability under the ADA, without a showing that a major bodily function or major life activity has been impaired. Yet each of these states permits employees to claim “recovery immunity” as a basis for medical exemption, whereas the ADA would not.

6.        State Approaches to the COVID-19 Vaccine, Part 2 

In addition to creating new bases for employees to seek medical exemptions from the vaccine, some states have also restricted employers’ ability to inquire into these exemption requests.  This is a departure from the customary ADA interactive process, which envisions a cooperative exchange of information between employer and employee to understand the employee’s limitations and need for accommodation.  Those who administer this process will need to be mindful of these restrictions when they are dealing with vaccine-related requests, as opposed to other types of ADA-covered accommodation requests that would still involve the usual degree of interaction.  Such restrictions have been adopted in the following states:

• Alabama, where employers are required to construe employee requests for medical exemption “liberally” in favor of granting the exemption;²⁶
• Florida, where an employer is required to approve a request for medical exemption upon receipt of a statement signed by a physician or physician assistant that COVID-19 “vaccination is not in the best medical interest of the employee”;²⁷
• Indiana, where an employer that receives a completed exemption request for an exemption based on either medical reasons or COVID-19 recovery must allow the employee to opt out of the COVID-19 vaccination requirement “without further inquiry,” even though the statute otherwise invokes the ADA’s accommodation standards;²⁸
• Kansas, where an employer is required to approve a request for medical exemption upon receipt of a written statement from a health care provider that receiving the COVID-19 vaccine would “endanger the life or health of the employee”;²⁹ and
• South Carolina, where a “medical exemption must be honored regarding any COVID-19 vaccine or booster requirement” and may be based on “the presence of antibodies, a prior positive test or pregnancy.”³⁰

Issues Related to Reasonableness

Apart from the fact that more individuals may invoke the ADA’s protections, and that different standards may apply to their requests, employers “living with COVID” must also acknowledge that the past two years have overturned long-held assumptions about how work gets done.  Whether a requested change to a job is “reasonable” cannot be determined without defining the essential functions of that job, including where and how it is performed.  But in many workplaces, those baselines have shifted dramatically, perhaps permanently.  We round out our “top ten” list with four issues related to the reasonableness of various accommodation requests.

7.        Remote Work Forever? 

In 2005, the EEOC advised that “[t]he ADA does not require an employer to offer a telework program,” but that an employer that chose to do so “must allow employees with disabilities an equal opportunity to participate in such a program.”³¹  Employers with such programs might issue formal documentation outlining technical aspects of these arrangements, such as requiring an employee to have secure network access and a physically appropriate workspace, stipulating that remote work was not meant to facilitate child care or other family responsibilities during work hours, and reserving the option to withdraw these arrangements at any time.  Obviously, even without these arrangements, employees had increasingly worked remotely for decades—not only in field positions, but wherever stable internet access could be found. 

However, prior to the pandemic, it was routine for employers to argue—and courts to accept—that “physical attendance in the workplace [was] itself an essential function of most jobs.”³²  As a result, employees seeking telework to accommodate physical impairments that were aggravated by workplace conditions often found their claims dismissed as unreasonable.³³  In a 2015 en banc ruling, the U.S. Court of Appeals for the Sixth Circuit rejected an employee’s telecommuting request, declaring, “Better to follow the commonsense notion that non-judges (and to be fair to judges, our sister circuits) hold: Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.”³⁴  In addition, the court rejected the EEOC’s argument that technology had advanced enough to permit at least partial remote work, stating “[N]o record evidence—none—shows that a great technological shift has made this highly interactive job one that can effectively be performed at home.”³⁵

How times have changed!  Regardless of whether employers were inclined to grant remote work at the start of 2020, many were compelled to do so by public health restrictions.  Between March 2020, when the World Health Organization declared COVID-19 a pandemic, and April 7, 2020, 42 states, the District of Columbia and Puerto Rico imposed various forms of “stay at home” or “lockdown” orders, with exceptions for narrow categories of “frontline essential” workers.  Businesses across a wide range of industries moved to remote work in a hurry, typically without formal remote work policies and without a detailed review of essential functions for individual roles.  And, while many of these lockdown orders were scaled back over the summer and fall of 2020, continuing concerns about COVID-19 transmission kept these remote work arrangements in place far longer than anyone could have anticipated.  This was especially true in workplaces that linked return-to-office plans to COVID-19 vaccination, with remote work often becoming a default accommodation for employees who could not obtain the vaccine.  Many businesses are only now (in the spring of 2022) bringing employees back to the physical workplace, and many are considering a long-term or even permanent adoption of remote and hybrid work models. 

Against this backdrop, employers should anticipate both that requests for remote work accommodations will increase, and that it will be harder to deny them.  For their part, employees who have worked remotely for more than two years will likely be prepared to show that they have worked just as well, or even more productively, outside the workplace, especially once freed from their commutes.  The EEOC has signaled its interest in this subject; its first COVID-19-related disability accommodation suit involves a claim from a worker who was recalled to her physical worksite in mid-2020 after the lifting of pandemic-related restrictions.  She allegedly requested to continue partial remote work because of a pre-existing pulmonary condition, but her request was denied and she was fired.³⁶  

Pre-pandemic case law suggests that where employers have permitted remote work in the past, and indeed benefited from it, they will need to explain a decision to withdraw or deny such arrangements going forward.³⁷  Employers should be prepared for a fact-specific examination of a job’s essential functions, as the ADA contemplates.  Certainly, it will be more difficult to rely on blanket assumptions about the “essentialness” of in-person work—especially in those cases where a court or an arbitrator is still conducting remote proceedings.

8.        Inclusion Concerns (or, The Other Side of the Remote Work Coin)

As noted above, many employers have seen significant benefits from remote work, and are willing to embrace it not only for reasonable accommodation purposes but more broadly.  However, the fact that remote work may become a favored accommodation for various types of impairments raises a question as to whether employees are allowed to fall “out of sight, out of mind.”  It is likely too early to assess whether remote employees will be disadvantaged as compared to their counterparts who are working onsite when it comes to assignments, promotions or compensation decisions.  These issues may not emerge until mid-year or year-end performance reviews are conducted, at which point employees may already have become disengaged from the workplace.  As part of their inclusion programs, employers should give serious thought to whether they are prepared to support these new ways of working, including by supporting managers in developing and setting direction for hybrid teams in an equitable manner.  Employers should also ensure that their formal review processes are able to capture the contributions of those working from afar. 

9.        Cost Considerations and “Significant Expense” 

A reasonable accommodation is one that an employer can adopt without undue hardship.³⁸  Undue hardship means that an accommodation would require “significant difficulty or expense” to an employer when considered in light of the following factors:

• the nature and cost of the accommodation needed;
• the overall financial resources of the facility or facilities involved, the number of persons employed at the facility, and the effect on expenses and resources;
• the overall financial resources of the covered entity, the overall size and number of employees of the business, and the number, type, and location of its facilities;
• the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce, and the geographic separateness and administrative or fiscal relationship of the facility or facilities to the covered entity; and
• the impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the facility’s ability to conduct business.³⁹

Given the above framework, the financial cost of an accommodation will rarely be a significant enough expense to constitute an undue hardship.  Indeed, as the EEOC has noted, “[p]rior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer's overall budget and resources (always considering the budget/resources of the entire entity and not just its components).”⁴⁰  Nonetheless, as COVID-19 continues to circulate, employers may expect that numerous employees will simultaneously request similar accommodations, resulting in costs that may become significant when measured cumulatively.  Cost considerations related to COVID-19 accommodation may include the following:

• COVID-19 Testing—In many workplaces that have adopted COVID-19 vaccination mandates, individuals who are granted exemptions but must report to a physical worksite are required to take regular COVID-19 tests as part of their accommodation.  The availability and expense associated with COVID-19 tests has varied widely throughout the pandemic, with average costs sometimes running as high as several hundred dollars per test, depending on the type of test used and whether reimbursement is available through group health insurance or public funding.  In addition, employers may be required to bear the costs of such tests, and possibly also pay for time spent testing, whether under statutes specific to COVID-19 vaccine exemptions,⁴¹ pre-COVID-19 medical testing provisions⁴² or general wage-hour principles implicated by the way the testing program is implemented.⁴³  Employers should consult with counsel to review their testing program design and obligations.
• Remote Work Expense Reimbursement—Even where an employer is inclined to grant a remote work accommodation, it may not be as simple as sending the employee to a home office.  Rather, employers need to consider where the employee is located, and account for various state and local provisions requiring reimbursement for necessary, out-of-pocket expenses incurred by employees in connection with performing their work.⁴⁴
• Vaccination Incentive Programs—Particularly in 2021, many employers sought to incentivize, rather than require, employees to obtain COVID-19 vaccines through the use of cash incentives or other gifts.  While the EEOC has provided limited guidance regarding such incentives, it remains unclear whether individuals who cannot obtain the vaccine for ADA-protected reasons must be offered the same incentive, and if so, what alternative method of qualifying for such an incentive would be appropriate.⁴⁵  Such incentive programs have often been stymied by the possibility that incentives must be paid regardless of whether employees actually get vaccinated.

10.      Accommodation Requests Based on Family Considerations

Finally, throughout the pandemic, employers have received requests from employees for modified work arrangements based not on the employee’s own disability, but that of a family or household member.  Although the ADA and analogous fair employment laws do prohibit associational discrimination, employers’ accommodation obligations are usually limited to situations where an employee’s own health condition creates an impairment.⁴⁶  Employees may have recourse under the Family and Medical Leave Act, or state and local leave laws, when they are caring for a covered family member who has a serious health condition and is undergoing treatment.  However, these laws do not necessarily address the situation where an individual has a long-term vulnerability that puts them at higher risk of COVID-19 complications, such as being immunocompromised or having other underlying health conditions, or a simple inability to receive vaccination due to age.

On the other hand, the wide use of remote and hybrid work may have created internal precedents that make it difficult to deny such accommodation requests.  There also may be workplace culture considerations, particularly in small- to mid-size organizations that pride themselves on family friendliness.  And the EEOC has recently issued guidance regarding caregiver discrimination, cautioning employers that while they are not required to grant accommodations to employees for the purposes of caregiving, they also must not discriminate against employees on any protected basis in granting flexible work arrangements.⁴⁷  To the extent that “living with COVID” means something very different for employees with vulnerable family members, this will be an important area to watch.

Footnotes