As the Delta variant of coronavirus has been spreading across the United States, employers should keep in mind that employees, independent of vaccination status, may still need reasonable accommodations related to COVID-19 – even if the employer has not mandated the vaccine.
The CDC has stated that, “the Delta variant was more infectious and was leading to increased transmissibility (…), even in vaccinated individuals.” (source) A few examples of employees that might seek reasonable accommodations related to the COVID-19 pandemic include immunocompromised workers or employees with mental health conditions.
Tips for Employers
Employers must engage in the interactive process with the employee to determine if a reasonable accommodation can be made.
For example, an employee tells their supervisor about their anxiety about returning to working in the office because of their anxiety of contracting COVID-19. Even though the employee did not put their request in writing, they have informed the company that they would like a reasonable accommodation. The employer asks the employee to have their health care provider submit documentation regarding the nature and duration of the impairment, activities that are limited by the impairment, the extent to which the impairment limits the employee’s job functions, and suggested accommodations. (Remember to have a signed release from the employee if you are engaging with the health care provider directly.)
The health care provider’s documentation states the employee was diagnosed with a mental health condition and their ability to engage in-person with other individuals during the pandemic has been affected, and a suggested accommodation is to allow the employee to continue working remotely. By allowing the employee to continue working remotely despite the other department members returning to the office, the employer has reached an agreement with the employee and successfully engaged in the interactive process.
What’s At Risk?
Companies that are not open to engaging in the interactive process with their employees could be subject to lawsuits filed by the EEOC, such as this 2020 case against a Georgia employer who fired an employee because of their mental health disability.
If you have questions about how to make reasonable accommodations for your employees or would like assistance in engaging in the interactive process with your employees, please contact the HRinDemand team.
U.S. Equal Employment Opportunity Commission. (2021, May 28). What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
U.S. Equal Employment Opportunity Commission. (2016, December 12). EEOC Issues Publication on the Rights of Job Applicants and Employees with Mental Health Conditions. https://www.eeoc.gov/newsroom/eeoc-issues-publication-rights-job-applicants-and-employees-mental-health-conditions
Bailey Cummins, PHR, is a member of the HRinDemand team, a human resources company in Reno, NV, offering expert guidance and easy-to-use tools to help small businesses with employment regulations, compliance, employee relations, and company growth.
Society for Human Resource Management. (2021, June 9). Fully Vaccinated Workers May Need COVID-19-Related Accommodations. https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Fully-Vaccinated-Workers-May-Need-COVID-19-Related-Accommodations.aspx