COVID has given us a lot of new experts. Most obviously, there are now millions of epidemiologists in this country. There are an awful lot of HIPAA experts emerging as well. “Reasonable accommodation” is poised to be next as more employers impose vaccination and other requirements, which – like every other employment policy – are subject to reasonable accommodation requirements under the disability and religious discrimination laws.
I still don’t claim to know anything epidemiology (I had to look it up to spell it), and I know just a little bit about HIPAA (including how to spell it… seemingly not a requirement to claim expertise). But I do know something about reasonable accommodation, and I think it’s important in our somewhat agitated world that businesses ground (or re-ground) themselves in some of the basics as it becomes a hotter topic.
- Reasonable accommodation requirements are nothing new. The federal Americans with Disabilities Act was passed in 1990 and employers have been wrestling with reasonable accommodation obligations under that law ever since. The right to certain accommodation of religious beliefs predates that, as it arises from Title VII of the Civil Rights Act of 1964. To oversimplify, an employer is required to make reasonable modifications to its policies and practices to A) enable an employee with a disability to do the job or B) accommodate religious practices.
- Accommodation obligations are not a blank check for employees. Rather, the employer simply must be reasonable. That is both good news and bad news. The bad news is that “reasonable” does not lend itself to a measurable definition, so there is inherently some uncertainty for employers and employees alike in determining what is reasonable. What is a reasonable accommodation for one employer/employee situation may not be for another, because each analysis is unique to the particular situation. The good news is that, well, we all ought to be able to be reasonable, right?
- Employers do more in accommodating disabilities than in accommodating religious beliefs, for two reasons. One, religious accommodation requests are simply far less frequent for most employers. Two, the scope of the employer’s obligation to accommodate religious beliefs is less than its obligation under the ADA. According to the U.S. Equal Employment Opportunity Commission, anything more than a “minimal burden” on the employer’s operations is an “undue hardship” that would likely defeat an accommodation obligation.
- Employees do not need to use the words “reasonable accommodation” to potentially trigger an employer’s accommodation obligations. In the case of the ADA, the obligation is to accommodate a “known” disability. Getting too cute on what you “know” is not likely to serve the employer well. If you are asking yourself if you might have an accommodation obligation based on what you have observed or heard, it is usually prudent to pick up the phone and ask your employment lawyer for at least some preliminary guidance on the situation.
- Once you have a request for an accommodation, it is important that you go through some level of process to consider it. The ADA refers to an “interactive process.” When reasonable accommodation obligations get to courts, courts are assessing not only the ultimate outcome as far as what, if any, accommodation was granted, but also measuring the employer’s effort in considering and thinking seriously and creatively about a request. While the request is not a blank check, it is important that the employer take the request seriously.
- When an employer has an accommodation obligation, there may be more than one acceptable accommodation that would satisfy the obligation. Employees do not simply get the accommodation they want, if they get one at all. A good example for our current environment: Employer A requires COVID vaccinations. If not requiring an employee to be vaccinated is a reasonable accommodation under one of these laws (not a given but assume for this particular example), the employee may wish to work remotely rather than getting vaccinated. The employer might have good business reasons not to allow remote work (though that is going to be a tougher sell in some businesses after a year plus of productive and profitable remote work), but accommodate the employee by requiring masking in the office.
- Employers may be setting precedent with each accommodation decision. As noted, each accommodation analysis is different – different work environments and job requirements and employees may yield different answers. But if an employer allows employee A to work remotely, it may become harder to deny that same accommodation later to employee B in the same department as employee A. Certainly there may be distinctions between the two employees’ situations that would support different treatment, but understand accommodations that you make may be used against you later. So while we all want to be flexible employers and enable teammates to succeed, there may be longer term value to not being too accommodating.
- Employers are entitled to certain information to help them assess an accommodation request. These are situations where it will likely be prudent to consult counsel because there is an art to handling these requests, and an employer is not entitled to unlimited information about an employee’s medical situation or religious beliefs, but employers should know that they can obtain reasonable amounts of information about a request to help assess the situation. Again, it’s not a blank check.
We will be hearing a lot more about reasonable accommodations in the weeks and months ahead (and then years as some of the disputes over accommodations to vaccination requirements make their way through the courts). Employers do have obligations in this regard, but know that this an old requirement that applies to new circumstances, and you have rights when these requests come to you.
This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.
Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business. Read more Metropreneurial Legal Insights.