Navigating the Americans with Disabilities Act is no easy feat — and, as with everything, COVID-19 has complicated things. Tracie DeFreitas, principal consultant at the Job Accommodation Network, tackled this dilemma at a recent compliance conference hosted by the Disability Management Employer Coalition.
During “Next-Level Accommodation and ADA Challenges,” a key session of the DMEC conference, DeFreitas led attendees through best practices for engaging in an interactive accommodation process to “level up their ADA and accommodation game.”
A noteworthy thread of the session was the set of challenges for employers presented by COVID-19. Here are answers to four burning questions that managers and HR teams have had throughout the pandemic, answered by an ADA specialist.
What do you do when an employee keeps extending their leave due to COVID-19?
Aligning with DMEC’s mission to aid employers with absence management, DeFreitas addressed a few complex leave accommodation situations. One of them was extended absence requests in light of COVID-19.
Continued, indefinite leave to avoid COVID-19 in this case is likely not the best solution amid “a pandemic with no apparent end,” DeFreitas said. It’s likely an employer’s first impulse to deny all requests for leave, she said.
Still, there may be an opportunity to work with the employee. DeFreitas urged HR professionals to review company policies around leaves of absence as well as state laws. Do this before approving or denying any leave, she said. A pro tip: consider approving leave in increments that seem reasonable. “You can always come back to it,” DeFreitas said, to assess if another extension is needed.
How do you settle remote work requests from poor performers?
The “novice-level strategy,” as DeFreitas called it, would be to simply deny this person’s request. A more enlightened approach, she suggested, would be to gather information about why said employee believes working from home will improve their performance. A step further, she suggested, would be to set goals and expectations for remote work and collaborate on a “telework supervision plan.”
From an employer standpoint, the safety lies in offering this as a trial accommodation. With a trial run, employers can monitor the success of the accommodation and have the data they need to move forward.
“We know there are a lot of pros of teleworking, particularly for employees with disabilities. But we’ve also found that telework has exacerbated some employees’ mental health and cognitive conditions, and created some job performance issues in some cases,” DeFreitas acknowledged. “When employees with disabilities have difficulty performing their jobs while teleworking, players should engage in that interactive process and see whether accommodations might help them be more productive or address that isolation issue.”
In turn, because of this phenomenon, JAN has observed employees volunteering a return to the worksite or office because of their desire to be more productive. Here, DeFreitas emphasizes the importance of communication. “As a manager or supervisor, be intentional with the individual — talk with them. Talk about what’s going on. Find out specifically what’s working and what isn’t, and what they might need in order to turn things around for them,” she said.
What is the correct way to respond to a vaccination exemption request?
According to DeFreitas, the best practice is to gather information regarding the request, particularly with a disability-focused lens. Instead of a “get vaccinated or be terminated” mindset, DeFreitas recommends gathering relevant information to determine whether the ADA or Title VII applies to the situation.
A crucial process for HR teams is determining whether this employee, who would remain unvaccinated due to their disability, can do the essential functions of their job in a way that minimizes harm. In “Processing Vaccination Accommodation Requests under the ADA,” Linda Carter Batiste, J.D., outlined four key factors to consider: the duration of the risk, the nature and severity of the potential harm, the likelihood this potential harm will occur and the imminence of the potential harm.
“The bottom line here is that some people may have a reason to require an exemption due to a medical reason, and when that’s the case, you want to explore whether or not the person can be accommodated,” DeFreitas said, adding that one way employers can allow an exception to their mandatory vaccination policy is to offer the employee in question the option to work from home.
How do you handle requests to forego masks in the workplace?
The situation is nuanced, DeFreitas pointed out. Many state mask mandates have been tabled, although many employers still require them — particularly for workers who are unvaccinated. The easy and common response has been “wear a mask or don’t come to work,” DeFreitas explained. However, she added, “There [often] was no further engagement to figure out whether the ADA applied or if there were accommodation solutions to consider.”
Engage in the interactive process, she recommended, to gather information. “Whether it’s a case of someone saying they can’t wear a mask when they’re required to or someone saying they want to wear a mask and other employees aren’t wearing them, you’re going to need to ask some questions,” she said. Worker safety is the priority, she continued, so employers should weigh factors such as whether the requesting employee works alone or comes into contact with co-workers. Employers can determine whether there are ways to physically isolate this employee or if they can provide other types of accommodations to reduce exposure risks.