DOL Says Workers Not Entitled to ADA Accommodation for High-risk Household Members

As the nation’s employers grapple with the issues raised by running and reopening businesses during a global pandemic, employees are voicing their concerns. One of those concerns is about COVID-19 transmission from employees who live in a household with someone who is considered “high risk” for the coronavirus illness.

In a guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and other EEO Laws,” the United States Equal Employment Opportunity Commission (EEOC) concluded that, while an employee who is in a high-risk category for COVID-19 might be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA), the employee is not entitled to an accommodation under the federal law to avoid exposing family members who are at higher risk of severe illness from COVID-19 because of an underlying health condition.

While an employee who is in a high-risk category for COVID-19 might be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA), the employee is not entitled to an accommodation under the federal law to avoid exposing family members who are at higher risk of severe illness from COVID-19 because of an underlying health condition.

What small businesses need to know about the Americans with Disabilities Act

The ADA requires employers with 15 or more employees to provide reasonable accommodations for employees and job applicants with disabilities unless the employer would suffer an undue hardship as a result.

Undue hardship means that, taking into account the employer’s size, financial resources, and the needs of the business, the accommodation would be “too difficult or too expensive to provide,” according to the EEOC.

Accommodations under the ADA can take many forms. Something as simple as a chair for an employee with a back problem may be enough for ADA compliance.

According to federal guidance, common accommodations can also include:

• Making existing facilities accessible
• Job restructuring
• Part-time or modified work schedules
• Acquiring or modifying equipment
• Changing tests, training materials, or policies
• Providing qualified readers or interpreter
• Reassignment to a vacant position

Other reasonable accommodations under the ADA are even more elaborate and can include additional leave beyond that which is already provided or telework. For example, employers should allow employees with higher risk of severe illness to telework, if possible.

Accommodations based on disability needs of household members

“The ADA does not require that an employer accommodate an employee without a disability.”

However, there is the issue of the possibility of worker transmission to a high risk member of the employee’s household. For this, the EEOC says “the ADA does not require that an employer accommodate an employee without a disability” based on the disability of a family member or other person they live with.

For example, an employee with asthma might be able to telework as an ADA accommodation during the pandemic. On the other hand, employers don’t need to provide telework as an accommodation to employees to protect asthmatic family members.

While the EEOC has clarified that the ADA does not require employers to accommodate employees based on the disability-related needs of a non-employee with whom the employee is associated, employers are free to provide accommodations in such situations. However, the DOL warns that employers should be careful not to engage in disparate treatment when providing accommodations. There is legal liability that can result from employee claims of uneven treatment.

“If you decide to adopt ‘flexible’ policies providing accommodations for employees where no legal mandates exist, make sure that those policies are fairly and consistently applied, so that they do not result in disparate treatment of employees in a particular protected group,” according to attorneys Susan Gross Sholinsky and Lauri F. Rasnick.

The attorneys also suggest that employers check whether an obligation exists under local or state law concerning temporary protections.

Associational discrimination

As is so often common in employment law matters, employers should check local and state laws.

The EEOC also noted in the guidance that the ADA’s prohibition against discrimination based on association with an individual with a disability only protects employees from different treatment or harassment based on that association, according to Carmen Decot, an attorney with Foley & Lardner.

While the ADA protects qualified individuals with a disability from workplace bias, the federal law also protects workers against employer bias stemming from a “known relationship or association” with someone who has a disability. Employers are prohibited from making “adverse employment decisions based on unfounded concerns about the known disability of a family member, or anyone else with whom the applicant or employee has a relationship or association,” the EEOC has said.

The EEOC provides the example of the president of a small company. He learns that his administrative assistant, Sandra, has a son with an intellectual disability. The president transfers Sandra to a lower-level position in which he will have less contact with her; this way, he can avoid any discussions about, or interactions with, Sandra’s son. This is a violation of the ADA’s association provision.

With COVID-19, more than likely this means that an accommodation wouldn’t be required under the ADA’s associational discrimination protection provision.

However, as is so often common in employment law matters, employers should check local and state laws.

“For the most part, state and local laws prohibiting discrimination based on familial or caregiver status also do not require accommodation for these reasons, but should be reviewed and considered,” Sholinsky and Rasnick wrote.