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June 7, 2022 – Federal Courts Uphold Reasonable Accommodations for COVID-19

Federal guidance jointly issued by the U.S. Department of Health and Human Services (HHS) and the U.S. Department of Justice (DOJ), along with guidance issued by the Equal Employment Opportunity Commission (EEOC), clarify when COVID-19 may be considered a disability under the Americans with Disabilities Act Amendments Act (ADA or ADAAA). For example, COVID-19 may substantially limit a major life activity for an individual when virus-related effects last or are expected to last several months. COVID-19 may cause dizziness and difficulty concentrating, shortness of breath, heart problems, and even stomach and intestinal pain, which can severely impact a person’s life. An existing condition may also be caused to worsen by COVID-19. For example, an individual may develop heart inflammation, strokes, and diabetes during or after acute COVID-19 infection. Individuals who experience these debilitating health effects may need to request a reasonable accommodation from their employer to return to work following their recovery from an acute COVID-19 infection.

COVID-19 may substantially limit a major life activity for an individual when virus-related effects last or are expected to last several months.

If an employer denies a disabled employee’s request for a reasonable accommodation, it may give rise to a disability discrimination lawsuit. In these circumstances, a court will evaluate an accommodation claim based on whether the plaintiff had an actual disability, whether the employer knew about the disability, whether the individual requested an accommodation, and whether the employer made a good faith effort to assist the employee.

Federal courts have recently relied on the guidance issued by DOJ, HHS, and EEOC to support and protect COVID-19 patients who are requesting reasonable accommodations at their place of work. First, in Brown v. Roanoke Rehab. & Healthcare Ctr., which was heard by the U.S. District Court for the Middle District of Alabama, the plaintiff filed a suit against her employer for denying her request for an accommodation following her diagnosis with COVID-19. Brown visited her physician to get tested for COVID-19 and her physician told her to self-isolate while waiting for the test results. Subsequently, Brown tested positive for COVID-19 and provided the physician’s instructions and test result to her employer. Brown requested temporary leave from her employer due to her positive COVID-19 test and associated symptoms. The employer, following the self-isolation guidelines issued by the U.S. Centers for Disease Control & Prevention (CDC), required a 14-day isolation period, but called Brown back into work on the seventh day of her 14-day isolation period. Brown did not return to work after expressing that she had not yet completed her isolation period. She was called back in again on the tenth and thirteenth days of her isolation period. Brown’s employer told her that if she did not report to work, it would be considered a voluntary resignation. These actions constitute her employer’s refusal to provide a reasonable accommodation for Brown’s disability. Brown did not return to work because she was still experiencing symptoms and was then terminated by her employer. Afterward, Brown continued to suffer from weakness, fatigue, brain fog, high blood pressure, cough, fever, and swollen eyes, which are all symptoms associated with COVID-19.

. . . the court’s decision makes it clear that Brown’s claim for disability discrimination based on her employer’s refusal to provide a reasonable accommodation following her COVID-19 diagnosis has merit.

The court relied on the guidance documents issued by HHS, DOJ, and EEOC to conclude that Brown provided enough facts to satisfy the definition of disability under the ADAAA. Brown provided specific facts about her health condition at the time of her termination and the symptoms she disclosed could substantially limit one or more major life activities such as breathing and concentrating. Although the court did not address the potential accommodations that would have allowed Brown to return to work, the court’s decision makes it clear that Brown’s claim for disability discrimination based on her employer’s refusal to provide a reasonable accommodation following her COVID-19 diagnosis has merit. This was possible because she provided specific facts about the COVID-19 symptoms she was experiencing, how they substantially limited her major life activities, and how her employer terminated her in close proximity to her disclosure of her medical condition.

Similarly, the court also ruled for the plaintiff in Burbach v. Arconic Corp., which was heard by the U.S. District Court for the Western District of Pennsylvania. The plaintiff, Burbach, was an attorney who sued his employer for disability discrimination for firing him due to his illness with COVID-19 and failing to provide a reasonable accommodation. During to the coronavirus pandemic, Arconic directed all employees to work remotely. Burbach relocated his family during this time and his health soon rapidly deteriorated. He was admitted to the hospital, where he was diagnosed with COVID-19 and placed on bedrest by his doctor until his breathing issues subsided. He notified his supervisors of his health condition but continued to work remotely. His illness continued to worsen, and he requested time off to recover. During his leave, he was still constantly contacted by his employer to work during his medical leave. Burbach chose to relocate to Slovenia to be with his family and requested an accommodation to work remotely from Slovenia, which was approved. Subsequently, Burbach’s supervisor changed her mind and refused to continue providing the remote work accommodation, even though the defendant’s other employees were all still working remotely. Arconic then terminated Burbach’s employment.

The court examined whether Burbach’s illness with COVID-19 was considered a disability under the ADA and concluded that his pulmonary issues represented a physical impairment that substantially limited a major life activity. Regarding his request for a reasonable accommodation, the court required the plaintiff to show that a reasonable accommodation would have been possible, which Brown satisfied because his employer initially granted the accommodation and then later revoked it arbitrarily. The court upheld the plaintiff’s claim that his COVID-19 was considered a disability and that he was entitled to a reasonable accommodation. Accordingly, Burbach’s disability discrimination case against his former employer was allowed to proceed.

. . . the court required the plaintiff to show that a reasonable accommodation would have been possible, which Brown satisfied because his employer initially granted the accommodation and then later revoked it arbitrarily.

These cases demonstrate how federal courts have drawn upon guidance issued by the DOJ, HHS, and EEOC to protect COVID-19 patients in the workplace, which has reinforced their right to request reasonable accommodations from their employers. Employers should be careful to work with their employees who are requesting reasonable accommodations following a diagnosis with COVID-19 to ensure their needs are being addressed and to avoid potential liability for disability discrimination.

P.M. Asked: Can I Negotiate Remote Work as a Condition of Employment if I am Immunocompromised?

“I am immunocompromised and thinking of switching jobs. Because of my compromised immune system, I need to work remotely during the coronavirus pandemic to avoid exposure to COVID-19. My current employer allows me to work remotely as a reasonable accommodation, but I don’t want to move to another job if they will not provide it. How can I negotiate remote work as a reasonable accommodation from a prospective employer as a condition of employment?”

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