Disability Accommodation And COVID-19: Ten Emerging Issues To Consider

• Published date: 02 May 2022
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Health & Safety, Employee Benefits & Compensation
• Law Firm: Littler Mendelson
• Author: Ms Devjani H. Mishra

As we enter the third year of the global COVID-19 pandemic, many U.S. businesses are implementing long-delayed return-to-office plans and hoping to establish a new equilibrium. Public health experts, economists and policymakers increasingly speak of "endemicity," a phase in which COVID-19 transmission rates fall to a constant but manageable baseline level, perhaps confined to certain regions, rather than actively accelerating and spreading throughout the population in epidemic fashion. Some refer to this next phase as "living with COVID" or even consider it a "return to normal."

In the employment law context, however, "living with COVID" does not represent a return to normal. Rather, developments since 2020 make clear that human resources professionals can expect-and are already encountering-numerous COVID-19 related challenges to their disability accommodation practices. This Insight reviews a "top ten" list of emerging issues in this area, broadly relating to increased claims for accommodation, administering the interactive process, and assessing the reasonableness of proposed accommodations.

Issues Related to Increased Claims

The ADA Amendments Act of 2008 (ADAAA) was explicitly adopted to increase the population that would qualify for coverage, and possibly accommodation, under the Americans with Disabilities Act (ADA). Since the ADAAA's adoption, employers generally have absorbed the notion that the term "qualified individual with a disability" is to be construed broadly. Even so, developments during the COVID-19 pandemic have expanded the potential pool of covered individuals who may seek the ADA's protections far beyond what even experienced practitioners may have anticipated. Three of our "top ten" emerging issues fall into this category.

1. New Requests Based on COVID-19 and "Long COVID"

It should not surprise anyone that a virus that has infected more than 60% of the U.S. population, and claimed the lives of 1 million Americans, will result in additional direct claims under the ADA. We learn more almost daily about the direct impacts of COVID-19 infection on different bodily functions, as well as the constellation of prolonged health conditions that have been termed "long COVID." Employees have begun to bring ADA claims based on impairments brought about by COVID-19 and its after-effects.¹ While most COVID-19 infections are brief, especially for those who have been vaccinated, the Equal Employment Opportunity Commission (EEOC) has noted that "[t]he limitations from COVID-19 do not necessarily have to last any particular length of time to be substantially limiting," and that restrictions that last several months may qualify.² In addition, the mitigating measures or treatments used for COVID-19 may themselves have negative side effects that substantially limit an individual's major life activities or bodily functions.³ Of course, whether a COVID-19 infection directly qualifies as an actual disability will require a case-by-case assessment.⁴

2. New Requests Based on Pre-Existing (but Undisclosed) Physical Conditions

The ADA defines a covered "individual with a disability" to include a person who "has a physical or mental impairment that substantially limits one or more major life activities."⁵ Importantly, "a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."⁶ Because these definitions cover virtually all chronic conditions and diseases, and because the ADAAA precludes consideration of almost all measures that mitigate the impact of such impairments, observers often note that virtually anyone in a workplace might qualify for the ADA's protections. Historically, however, employees whose chronic conditions were well-controlled by mitigating measures rarely have needed to invoke the ADA if their conditions were not substantially limiting.

On the other hand, the EEOC has long recognized that certain pre-existing conditions could make individuals more susceptible to serious illness and complications during a pandemic. In March 2020, the EEOC updated its guidance on "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act," which it first issued during the spread of the H1N1 virus.⁷ The Pandemic Preparedness Guidance cautions employers against making proactive inquiries "to identify those at higher risk of influenza or coronavirus complications," but also anticipates that such employees may voluntarily disclose, or at least seek accommodation in connection with, their high-risk status.⁸ The EEOC's subsequently issued guidance ("What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws") further cautions that an individual's COVID-19 infection may actually "worsen the individual's pre-existing condition that was not substantially limiting, making that impairment now substantially limiting."⁹

The Centers for Disease Control and Prevention (CDC) lists numerous conditions that can place an individual at higher risk of complications from COVID-19.¹⁰ This list includes conditions that are relatively prevalent among U.S. adults, such as Type 1 and Type 2 diabetes, obesity, hypertension, pregnancy and physical inactivity. Given how much is still unknown about the long-term effects of COVID-19 infection and its interaction with these conditions, it is foreseeable that many individuals who never disclosed such conditions to their employers will now seek accommodation to reduce their risk of contracting COVID-19 and experiencing long-term complications. Employers therefore should prepare to deal with an increase in inquiries from employees who previously did not need or seek accommodation prior to the pandemic. Employers may need to provide reasonable leeway for employees who wish to continue certain protective measures, given continuing COVID-19 transmission risks.¹¹

3. New Requests Based on Psychological, Emotional and Mental Health Issues

From its inception, the ADA has protected individuals with mental impairments as well as physical ones. Employers have long struggled with how to interpret the ADA in the context of mental illness, particularly when an individual claims to be impaired in the major life activities of socializing or working with others. Covered mental impairments may include any mental or psychological disorder, including intellectual disabilities, emotional or mental illnesses, learning disabilities and neurodiversities.¹²

Given this scope of coverage as well as the societal disruption created by the pandemic, employers should anticipate an increase in ADA claims based on psychological and emotional impairments. Throughout the pandemic, employers have faced claims from individuals who are concerned about their own perceived risk of contracting COVID-19, or of transmitting it to vulnerable family members, and claim that their underlying anxiety or depression has been exacerbated. As a general matter, the EEOC notes that "employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic."¹³

Moreover, in settings where employees have been working remotely for two years or longer, many have suffered the effects of prolonged social isolation on their mental health, and are finding it difficult to readjust to...