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EEOC: Be flexible, proactive with accommodations

Proactive employers can provide employees who have been teleworking due to COVID-19 information on disability-related requests for continued remote arrangements.
By: | June 9, 2020 • 5 min read
EEOC discrimination and harassment

As HR and business leaders strategize their reopening plans, it’s important to consider which employees may need a reasonable accommodation before asking them to return to the office, says Kimberly Smith-Brown, spokesperson for the Equal Employment Opportunity Commission.

Although the EEOC has not specifically addressed the various phases of reopening, agencies that want to be proactive can provide employees who have been teleworking due to COVID-19 information on disability-related requests for continued telework or other flexible arrangements, Smith-Brown says. This includes employees who may have an underlying condition that makes them more vulnerable to COVID-19 and those over 65.

“Employers may want to begin to provide this information even if return-to-worksite dates have not yet been determined,” she added. “This allows the employer to invite advance requests and information to begin its planning process, and to begin discussions with those employees who request such arrangements.”

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Same Law Applies

Smith-Brown also notes that “the law regarding reasonable accommodation is the same regardless of the phase of reopening.”

Organizations “are encouraged to be creative and flexible when discussing possible reasonable accommodations” and use the Job Accommodation Network, which may be able to assist in helping identify possible accommodations, she adds.

Under the Rehabilitation Act, absent undue hardship, employers must provide individuals with disabilities a reasonable accommodation; while they do not have to provide the requested accommodation, they must provide an effective one.

According to recent EEOC pandemic guidance, depending on the circumstances, accommodations that may reduce exposure to the virus include:

· Enhanced protective gowns, masks, gloves or other protective equipment beyond what other employees are provided.
· One-way aisles.
· A barrier that provides separation, such as plexiglass, tables or other means to ensure adequate social distancing.
· Temporary job restructuring of marginal job duties.
· Temporary transfers to a different position.
· A modified work schedule or shift assignment to allow an employee to commute during less busy times.
· Moving the location of where an employee performs work.

“Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances,” the guidance states.

PPE Modifications

Employers also may need to provide specialized PPE as a reasonable accommodation for employees with disabilities, Smith-Brown said.

For example, if employees are required to wear masks, gloves or gowns, the Rehabilitation Act and Title VII may also require the employer to provide:

· Non-latex gloves to those who have a latex allergy.
· Modified face masks for interpreters or others who communicate with employees who read lips.
· Gowns designed for individuals who use wheelchairs.
· Religious accommodations under Title VII, such as modified equipment due to religious beliefs.

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If doing so would not be an undue hardship, Smith-Brown says, agencies “should discuss the request and provide the modification or an alternative if feasible.”

See also: Why empathy is key as employees return to workplaces

If no accommodations would eliminate or reduce the risk of exposure at the workplace while allowing the performance of essential functions, agencies must consider accommodations such as telework, leave or reassignment, according to EEOC guidance.

Anjali Patel, Esq., is legal editor for cyberFEDS® Washington bureau.

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