ADA Developments for the Remote Workforce

For the monthly Law & the Workplace webinar series exclusively for Nyemaster clients, labor and employment attorney Katie Graham reviewed the current approach to claims related to disability accommodations.

 

In a post-pandemic workplace, a lot has changed. But the legal framework and analysis for evaluating disability claims remains largely the same. COVID-19 has affected a few elements, especially the undue hardship analysis. Still, the approach for employers follows the same basic steps.

 

Applicable Laws

Both federal and state laws protect against disability discrimination. For employers, key statutes include the:

• Americans with Disabilities Act (ADA): The ADA applies to any employer engaged in commerce with 15 or more employees for each working day in 20 or more calendar weeks during a year.
• Rehabilitation Act, Section 504: The act largely mirrors the ADA and applies to organizations that receive federal funding, such as elementary, secondary, and post-secondary schools.
• Iowa Civil Rights Act (ICRA): The state counterpart to ADA, the ICRA applies to employers with four or more employees.
• Family and Medical Leave Act (FMLA): When an accommodation request involves leave or time off, an employer should ask: Does this individual have a serious health condition and do they qualify for FMLA?

 

Although each statute has exemptions, these laws govern most employers dealing with disability accommodations.

 

Steps in Analyzing an ADA Claim

Each claim comes with distinct facts, but employers can start with three basic questions.

 

1. Is the employer covered by the ADA or the ICRA?

Certain religious entities and nonprofit organizations are exempt. Most employers are covered by ADA or ICRA if they meet the employee threshold.

 

2. Does the individual have a disability?

ADA defines a disability as

• a physical or mental impairment that substantially limits one or more major life activities,
• a record of such impairment, or
• being regarded as having such impairment.

 

Most accommodation requests relate to an actual physical or mental impairment. Only a very narrow circumstance requires consideration of an accommodation for a record of impairment (for example, cancer in remission). By its nature, a regarded-as claim does not need accommodation.

 

 “Substantially limits a life activity” means as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity to be considered substantially limiting.

 

Major life activities include:

• caring for oneself
• performing tasks
• seeing
• hearing
• eating
• sleeping
• walking
• standing
• lifting
• bending
• speaking
• breathing
• learning
• reading
• concentrating
• thinking
• communicating
• working or interacting with others

 

Major life activities also include major bodily functions such as functions of the

• immune system
• normal cell growth
• digestive system
• bowel and bladder
• neurological system
• brain
• respiratory system
• circulatory system
• endocrine system
• reproductive system

 

For some actual disability claims, an analysis of disability may not be necessary. These conditions almost always meet that threshold bar for a disability:

• deafness
• blindness
• intellectual disability
• partially or completely missing limbs or mobility impairments requiring a wheelchair
• autism
• cancer
• cerebral palsy
• diabetes
• epilepsy
• HIV
• multiple sclerosis
• muscular dystrophy
• major depressive disorder, bipolar, PTSD, obsessive compulsive disorder, and schizophrenia

 

If any of these conditions are the basis for the request, employers may want to assume the employee will be able to establish that they have a disability. The employer can then move to the next part of the analysis.

 

Note that mental health issues that limit major life activities are also included. For employers, mental health claims are not typically known or obvious. An employer usually only learns about them through a dialog with the employee or through performance issues that result in a dialog about a potential mental disability. 

 

In Goodpaster v. Schwan’s Home Service, Inc., 849 N.W.2d 1 (Iowa 2014), the Iowa Supreme Court decided that just because a condition is episodic in nature does not mean that the condition does not qualify as a disability. In that case, multiple sclerosis with occasional flare-ups substantially limited the employee’s major life activities when active.

 

3. Is the individual qualified to perform the essential functions of the job with or without a reasonable accommodation?

If an individual no longer can perform the essential functions—even with a drastic accommodation measure—they’re no longer qualified for that position. That means there is no accommodation that can be provided that would be considered reasonable.

 

If the individual is qualified, is a reasonable accommodation needed to perform the essential functions of the job? Is the reasonable accommodation nonetheless an undue hardship for the employer?

 

For a qualified individual, determine if the reason for accommodation relates to an essential function. If the reason the job exists is to perform that function, then it’s likely an essential function. Also, it may be an essential function if a limited number of employees can perform that job function and/or it is highly specialized.

 

But, a marginal function can be displaced or exchanged with other employees. That said, the ADA doesn’t require other employees to work harder or longer to accommodate someone with a disability.

 

Finally, does the individual pose a direct threat? Even if an employer is ready to provide an accommodation, is something still going to cause a risk of harm to the person or others? If an employer can’t reduce that risk, they likely can deny the accommodation.

 

Actual Disability and Record of Impairment Claims

Actual physical or mental disability claims are most common.

 

Record of impairment claims rely on the theory that the individual has a history of or has been misclassified as having a mental or physical impairment that substantially limits one or more major life activities. And the employer acts on that record of impairment.  

 

In a narrow set of circumstances, an employer might consider an accommodation for a record of impairment claim: As an example, an employee needs a leave or schedule change for follow-up appointments or monitoring with a health care provider for a prior substantially limiting condition that may become active again, such as cancer in remission. In that example, although they might not have an actual disability any longer, they have a record of impairment. An employer may need to accommodate to avoid a record of impairment claim.

 

Regarded-As Claims

The employer in a regarded-as claim usually is being too paternalistic in trying to help the employee. The employee didn’t ask for an accommodation, but an employer nonetheless assumes they couldn’t do some part of the job because of a condition. The individual says they can do all the essential functions of the job. A claim might be filed when the person is not hired because of the employer’s “stereotypes” of what that person could or could not do.

 

The Interactive Process for Reasonable Accommodations

An employee must request an accommodation. During dialog with the employee, an employer can ask a follow-up question: Is there something we can do to help you perform your job?

 

The interactive process should begin as soon as it’s determined an employee is qualified to perform the essential functions of the job. It’s a back-and-forth between the employer and employee to decide on a reasonable accommodation:

• What reasonable accommodation is needed? This includes finding out which essential functions need an accommodation, what was requested, and if input from a health care provider is needed.
• Does a reasonable accommodation impose an undue hardship?
• Does the individual pose a direct threat to the health or safety of him/herself or others?

 

It’s a time-sensitive process. An employer can’t stall or wait so long that they have an adverse impact on the individual’s health, and must act in good faith in attempting to identify an accommodation.

 

An employer does not have to give an accommodation of the employee’s choice. An employer can propose an alternative reasonable accommodation. The employer’s good faith efforts trigger the employee’s duty to cooperate.

 

In litigation, a failure to accommodate by refusing to participate in the interactive process is often the claim aimed at the employer:

• The employer knew about employee’s disability.
• The employee requested an accommodation.
• The employer did not make a good faith effort to assist the employee in seeking accommodation.
• The employee could have been reasonably accommodated but for the employer’s lack of good faith.

 

If the employee causes the breakdown of the interactive process, the employer likely cannot be liable. The employer will have to show their efforts to engage the employee.

 

Also, an accommodation request after a performance problem typically does not excuse prior performance issues and is nothing more than a request for a “second chance.” Case law is consistent that employers typically can’t be held liable if they didn’t know about the disability until after a performance improvement plan or other employment action was started.

 

“I Need an Accommodation.”

 When an employee requests an accommodation, an employer should review these elements:

• Is the condition known or obvious? If it is, there may be no need for additional documentation.
• Do we need additional medical documentation? If the disability is not known or obvious—for example, a mental health disability—medical documentation can help determine whether the employee can perform the essential functions safely. It also allows the employer to evaluate the accommodation and potentially provide an alternative. The employee must be a current employee, and the condition cannot be known or obvious or it may be considered an impermissible medical examination.
• Is the medical documentation clear or conflicting? If different medical providers offer contradictory opinions, an employer may ask for additional clarification. A follow-up questionnaire may help figure out what the employee needs.

 

Iowa’s physician-patient privilege is statutory. Employers may not reach out to health care providers without a written waiver from the employee.

 

“Because of My Disability, I Need to Work from Home.”

As an accommodation, working from home has to somehow assist that individual’s disability so they can perform the essential functions of the position.

 

If an employer needs the employee to be in the workplace for some reason, it’s vital to determine the employee’s reason for the request. An alternative reasonable accommodation may be available in the workplace.

 

However, if work-from-home options are available to others without a disability in the same job category, denying the request could be a basis for a disability discrimination claim.

 

Undue Hardship

Previously a key defense for employers, post-pandemic, some accommodations are hard to defend as undue hardships. The ability to work from home is the most common. Pre-pandemic, working from home was an exception. It required employers to address equipment issues, internet capabilities, and security. Because employers made remote work viable during the pandemic, it’s no longer considered an undue hardship in most cases.

 

If there isn’t an alternative reasonable accommodation and it truly would be an undue hardship to allow the employee to work from home, the court will look at a history of this person performing that position remotely and essential job functions. Business-necessary in-person interaction with the public might be an essential function that would make it an undue hardship to allow remote work.

 

The law is changing concerning what is and is not an undue hardship. It requires professional legal advice to carefully weigh the key factors.

 

The Interplay with FMLA

Indefinite leave is never a reasonable accommodation under the ADA. If a return-to-work date is unknown, the employer might start with FMLA leave. Though the situation is indefinite now, after 12 weeks of FMLA-protected leave, the employer can follow up and perhaps determine a more definite end to the leave.

 

Ask the right questions. Gather appropriate documentation at permissible times. Follow a clear analysis process. These are key to handling accommodation requests. Discuss your situation with your Nyemaster labor and employment attorney to help reduce your risk of a disability discrimination claim.