With Accommodation Requests on the Rise Employers Need to Pay Attention, Experts Say

Sarasota, FL (WorkersCompensation.com) – Employers need to pay close attention to rapidly changing legislation, litigation and court rulings on COVID-19, experts say. Employees are increasingly making requests of their employers, seeking exemptions to vaccine mandates and asking to continue to work from home. That trend is likely to not only continue but ramp up going into 2022.

Employers who will be most successful in avoiding lawsuits and government repercussions are those that can keep their wits about them as pandemic-related changes and decisions are made.

“Accommodation requests related to Covid-19 should be reviewed individually based on the totality of the circumstances and all steps of the interactive process should be documented clearly,” advised Adam Morell, AVP of Product Compliance for Sedgwick.

Morell and Audrey Bryan, Sedgwick’s director of Business Service Operations outlined the latest changes that should be on employers’ radar and how organizations should proceed, during a recent webinar produced by the Disability Management Employer Coalition.

Telework Changes

Nearly half of employees surveyed say they don’t want to return to in-office work, according to the speakers. Among employers, 71 percent say that work from home (WFH) is the most often requested accommodation. But the tables have turned for employers as to how courts view that.

Six years ago Ford Motor Company won a legal challenge to its denial of an employee’s request to WFH. The court agreed with the company that the employee could not do the essential functions of the job at home. Fast forward to last March, when the company gave 30,000 workers the option to work remotely.

“Before March 2020, it was accepted that courts would give huge deference to the employer in determining that ‘onsite presence’ was an essential function of the job. The Ford case from 2015 really was a great example of allowing an employer to determine that onsite presence was required,” Morell said. “But about March 15, 2020, 76 million employees were forced to WFH to curb the spread of COVID-19.”

Companies trying to reject employees’ WFH requests will now need to address questions such as, why an employee who’s worked from home for more than a year should now be required to work onsite. Courts want to know why in-person presence should be a requirement.

“Because we’ve had 18 months of many WFH, what are the hardships the employer is going to face if they allow the employee to telecommute,” Morell said. “Our thinking is that the employer should be able to point to when [the employee did] WFH, why was it not effective …problems with technology? Productivity? Did [the worker] lose a sale? These are the types of questions employers did not need to necessarily answer but now will have to think about.”

The mass exodus of workers from workplaces to their homes brought with it a change in view. “The game has changed,” Morell said. “You now have to interactively dialogue with these requests.”

Court Rulings

Recent court rulings show the importance of taking every request on a case-by-case basis. In Peeples v. Clinical Support Options, the plaintiff requested to WFH because an asthma condition prevented wearing a mask. The employer said it had personal protective equipment and policies that would protect the worker and did not agree to the WFH request.

The court sided with the employee, saying the company did not conduct an individualized assessment to determine whether teleworking should be allowed as a reasonable accommodation. It also said the PPE was not an accommodation, but safety rules, and did not negate the obligation to go through the interactive dialogue.

In other cases, courts have sided with the employer. In Frantti v. State of New York, the court agreed that allowing the employee to WFH was not a viable option. “The employer could not technically accommodate remote work – quaint as that may seem to us now during this extraordinary era of pandemic-necessitated remote work,” the court said.

And in Ryerson v. Jefferson County the court ruled that the sensitive, confidential nature of the tax auditory’s work precluded WFH, despite her colitis. “Because of her inability to work at the office, she was not a ‘qualified individual,’” the court said.

‘If you do a full and fair interactive dialogue with the employee and determine the accommodation requested – here, WFH – you are going to be in a much better position than if you had not done the individualized assessment,” Morell said.

Vaccine Mandates and Exemptions

Employers requiring vaccinations of their workers are seeing many requests for exemptions. The Biden Administration’s mandate for companies with at least 100 employees to either require vaccinations or weekly testing is on hold – for now. However, employers should be aware of additional requirements they face.

“Some states, such as Texas, Montana and New York, have their own different policies,” Bryan said. “What hasn’t changed [with the Biden mandate], is that it is really critical to be familiar with different state mandates, as they vary, and are expected to change rapidly.”

New York, for example has mandated that healthcare workers be vaccinated – with no option for testing. Montana and Texas, however, have enacted prohibitions on vaccine mandates.  

“Because of [the Biden mandate] reality, it is going to be really interesting to see how individual states respond,” Bryan said. “As an employer it will be critical you stay on top of the different state regulations.”

Despite the changing landscape, employers do have flexibility and rights to impose strategies they believe will protect their companies and their employees – as long as they follow the rules.

“The good news here, when you are assessing that accommodation, you are going to stick with our old friend the interactive dialogue,” Morell said. “The same three questions you ask: ‘does the employee have a disability?’ If not, they are not covered by the ADA nor state disability laws and don’t have to be given an accommodation. Second, ‘is there a reasonable accommodation that will allow the employee to do their job?’ There are some WFH cases where the employer has shown there is not. Third, ‘would providing an accommodation impose an undue hardship?’”

In a recent guidance the EEOC provided examples of accommodations employers should consider if they are requiring a vaccine and the employee says they cannot get it. These include:

• Requiring the employee to wear a mask at work
• Limiting contact between the employee and coworkers or customers
• Providing a modified shift
• Permitting telework if feasible
• Conducting periodic testing
• Reassigning the employee to a position in a different workplace.

“My thinking is, if the EEOC is providing a specific list of accommodations, I should consider [them],” Morell said. “I’m actually going to consider each of these things when an employee requests an exemption from the vaccine.”

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