September 15, 2020

COVID-related restrictions raise a host of novel issues regarding the accommodation of employees with disabilities. Public health guidelines, including those applicable to remote work and physical distancing, may impact current accommodations or give rise to a need for new ones. The economic downturn may limit the availability of work and accommodation options, and pandemic conditions may exacerbate anxiety and depression.

In this session, legal and medical experts will address the intersections between ongoing pandemic restrictions and the duty to accommodate employees with disabilities, including issues such as the following:

  • Is an employer’s duty to inquire into an employee’s possible need for accommodation altered during the COVID-19 pandemic, particularly for those working from home, when otherwise “telltale” signs may not be obvious? What factors or signs should employers and unions look for in deciding whether to inquire about mental health issues?
  • Do employers have a duty to accommodate employees experiencing stress or mental distress as a result of COVID-related conditions?
  • Should employers and/or unions proactively initiate communications with employees known to have mental health disabilities regarding possible deterioration or relapse? Could such contact be considered discriminatory or privacy-invasive?
  • What are an employer’s accommodation obligations to an employee who is not sick but has a particular vulnerability to COVID-19, such as a compromised immune system? If an employer is aware that an employee is high-risk due to an existing disability, can/should the employer ask the employee about accommodation?
  • Can the duty to accommodate require an employer to bear the cost of modifying a home workspace if attendance at the office is not possible?
  • What are an employer’s accommodation obligations where an employee with a mental health disability has difficulty working remotely due to environmental stressors at home?
  • What happens to hours-of-work adjustments where the whole workforce is put on staggered hours to avoid workplace crowding or travel during peak periods?
  • If the duties pertaining to an accommodated position change or disappear due to COVID-19, how far is an employer required to go to find other duties pending a return to “normal” business? Can/should a permanent employee be placed in a temporary position if that is the only suitable one? Must an employer continue to pay wages to the employee if no other work is available?
  • In light of COVID-related restrictions, should employers accept accommodation requests without medical documentation or with only limited documentation?
  • How might the undue hardship analysis be impacted by COVID-19 conditions? Are undue hardship claims based on financial cost or on the employer being overwhelmed with requests for accommodation by other employees in similar situations more likely to succeed?