Telecommuting as a Reasonable Accommodation Under the ADA: The Pandemic Trial Run

Photo by Andrea Davis on Pexels.com

In the times before COVID-19, there were people (like the author) who telecommuted, but we were definitely in the minority. Now, thanks to the pandemic, many more people have been working remotely, and doing so successfully. And according to some new EEOC Guidance, successful telecommuting could be considered something of a trial run for those employees who ask to work remotely after the pandemic as a reasonable accommodation under the Americans With Disabilities Act (ADA).

This is a new Q & A from the EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws:”

Q: Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)

A: Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.

In a nutshell: if an employee with a disability had requested telecommuting as a reasonable accommodation before COVID-19, and that request was denied on the grounds that the employer did not think telecommuting would be workable, and then that employee successfully telecommutes during the pandemic, now the employer may no longer have grounds to deny the telecommuting as a reasonable accommodation after all of this pandemic stuff is over. Why? Because the pandemic telecommuting operated as a “trial run” that showed that the employer’s initial concerns about teleworking may be unfounded. At a minimum, the employer cannot simply deny the request to work remotely on the ground that it was denied previously. Instead, the employer must work through the interactive process with the employee to determine what accommodation is reasonable.

Although I am always reminding employers to be consistent in their treatment of employees, this is an exception to that rule. An employer may need to treat a disabled employee differently from other employees because the disabled employee needs accommodations that other employees do not. The interactive process by which an employer, the disabled employee, and the employee’s health care provider discuss and decide upon a reasonable accommodation requires an individualized assessment of the employee’s abilities and needs.

The takeaway: The duty to provide reasonable accommodation is a fundamental statutory requirement under the ADA. An employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible.  Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Maintaining the Confidentiality of Employee Health Information During the Pandemic

Photo by Andrea Piacquadio on Pexels.com

In order to take the CDC recommended precautions to minimize the spread of COVID-19 in the workplace, employers must gather information about employee health. What can they gather, and what should they do with it? For answers, we look to the the Americans with Disabilities Act (ADA). The ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

  •  An employee’s ability to perform essential job functions will be impaired by a medical condition; or   
  • An employee will pose a direct threat due to a medical condition.

 This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.

Not surprisingly, the EEOC has concluded that based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard, which justifies making inquiries to determine if employees are infected with COVID-19.  Therefore, employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19.  Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.

Employers may also receive information from employees regarding certain health conditions that may make them or close family members more vulnerable to complications from COVID-19.

What’s an employer to do with all of this health information? Keep it confidential.

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

It is also a good idea to limit access to confidential employee health information to a few trusted management level employees, such as a Human Resources Manager or Safety Manager, and if your company has one, a company nurse. Remember, if someone doesn’t know about an employee’s health condition, she can’t use that knowledge as a basis to discriminate against the employee.

What happens if employees ask whether a certain employee has tested positive for COVID-19? The correct response is to say that you cannot give out confidential health information. Even if it is a small workplace, and folks may guess that the employee who has been out for 14 days may have COVID-19, do not be tempted to confirm any rumors.

Keep quiet, and keep washing those hands!

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Is a Genetic Mutation a Disability? The Sixth Circuit Says Maybe.

Photo by Miguel Á. Padriñán on Pexels.com

Is a genetic mutation disability?  Specifically,  is the genetic mutation known as a BRCA1 mutation (Angelina Jolie revealed that she has this mutation) a “disability” under the Americans with Disabilities Act (ADA) even though the employee has not yet developed breast cancer?  In a case of first impression, the Sixth Circuit Court of Appeals said maybe.  (Darby v. Childvine, Inc., No. 19-4214 (6th Cir. June 30, 2020)).

Sherryl Darby underwent a double mastectomy following diagnosis of the growth of abnormal pre-cancerous cells along with the BRAC1 genetic mutation that contributes to abnormal cell growth. Invoking the Americans with Disabilities Act and Ohio law, Darby alleged she was discriminated against when her employer terminated her employment upon learning of her condition. (Interestingly, she did not bring a claim under GINA.) The district court dismissed her claims, concluding that Darby’s genetic mutation had not yet manifested into a disability cognizable under the ADA. The Sixth Circuit reversed the decision below and held that Ms. Darby’s allegations were sufficient to survive a motion to dismiss.

The key issue was whether Darby’s genetic mutation, which had not manifested in cancer, constitutes a “disability” under the ADA. Under the ADA, a disability as defined as “a physical or mental impairment that substantially limits one or more [of her] major life activities.” 42 U.S.C. § 12102(1)(A).  

Darby argued that her impairment substantially limits her normal cell growth as compared to the general population due to both a genetic mutation (BRCA1) that limits her normal cell growth and a medical diagnosis of abnormal epithelial cell growth serious enough to warrant a double mastectomy.  For purposes of Rule 12(b)(6) motion to dismiss, the Court agreed and found that Darby’s gene mutation and abnormal cell growth, though not cancerous, qualify as a disability under the ADA. See Lonergan v. Fla. Dep’t of Corr., 623 F. App’x 990 , 993 (11th Cir. 2015) (finding plaintiff successfully alleged a substantial limitation in major life activity of normal cell growth in part due to allegation of “abnormal growth of pre-cancerous cells”). 

The Court further noted that Darby’s claims are entitled to further consideration through discovery: “Particularly with less-well-understood medical issues like the BRCA1 genetic mutation and its effects on “abnormal epithelial cells,” expert medical testimony may help reveal whether Darby’s condition “substantially limits” normal cell growth.”

The Court also stated that a genetic mutation that merely predisposes an individual to other conditions, such as cancer, is not itself a disability under the ADA. The terms of the Act do not reach that far. See Shell v. Burlington N. Santa Fe Ry. Co., 941 F.3d 331 , 335-36 (7th Cir. 2019) (finding no ADA disability where plaintiff based his claim on conditions he feared he would develop as a result of obesity). In other words, in order to rise to the level of a disability, a genetic mutation must have some immediate effect on a person’s body that substantially limit a major life activity.  

The takeaway:  This is an area of the law that is still developing. Thus, each situation must be considered by an employer on a case by case basis.  In order to avoid potential liability under the ADA, an employer must be extremely cautious in its treatment of any employee who presents medical issues related to a genetic predisposition or mutation.  

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.