As people recover from COVID-19 and report lingering effects that make it difficult to perform their job duties, these cases may be afforded accommodations under the Americans with Disabilities Act (ADA).
The Equal Employment Opportunity Commission (EEOC), which enforces the ADA, has released guidance on how the law pertains to cases of COVID-19, professor Thomas Lenz, a lecturer at USC Gould School of Law, told the Northern California Record.
“The ADA is a law that really approaches each case based upon that employee’s unique circumstances,” Lenz said. “So an employer is going to need to look at whatever the specifics are with that particular employee’s job duties and job description, to determine what the essential functions are for that job.”
People with the lingering effects of COVID-19 have come to be known as “long haulers,” according to the American Medical Association.
“Disability law expects an interactive process, where employers and employees will dialogue,” said Lenz, who is also a partner handling labor and employment law at Atkinson, Andelson, Loya, Ruud & Romo. “Maybe the employee says, ‘I need an accommodation, let’s look at the job description,’ and the employee may propose a certain accommodation,” Lenz said. “Employers are not bound to do as the employee requests, but there is that duty to go through the process.”
Lenz noted there is a defense to accommodation called undue hardship, which an employer can argue if accommodating a disability is deemed too costly or burdensome. That may be more likely at a small business than a large operation.
Still, the undue hardship bar is set very high.
“When the law requires a detailed-based assessment, if an employer says undue hardship out of the box, a reflex or knee-jerk reaction, I think, is going to look suspicious under the law,” Lenz said.
“These cases do get litigated, each one is very much dependent on their facts, and looking at EEOC guidance from earlier this year, there is language which suggests even something that has temporary sort of status – if it is affecting a major life activity – could be protected.”
Lenz emphasized there is no one-size-fits-all way to address an employee’s job situation or the employer’s ability to accommodate a potential disability. Federal and state leave programs may also be considered to meet an employee’s needs.
“It’s important to communicate and pay attention to the changing legal standards that are out there,” Lenz said. “Good interaction is critical; if one side is not listening to the other, that is going to be where the process fails.”