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EEOC's Lucas Flags Need For Fresh Virus ADA Guidance

By Anne Cullen · April 8, 2021, 10:17 PM EDT

U.S. Equal Employment Opportunity Commission member Andrea Lucas said Thursday that the agency is aware that businesses want an update to its running guidance on the interplay between the Americans with Disabilities Act and COVID-19, and indicated that she'd like to see the agency unveil fresh advice in this arena.

Lucas, one of the agency's three Republican commissioners, made clear at an American Bar Association virtual legal conference that she cannot speak on behalf of the full commission, but acknowledged that stakeholders have been clamoring for more advice about how to balance their obligations under the ADA — which bars disability discrimination — and urgent workplace needs tied to the coronavirus.

A technical assistance document covering this topic was last updated in December, and Lucas pointed out that vaccinations have become increasingly available and more workplaces have reopened since then. While she noted that it's up to agency head Charlotte Burrows to spearhead any changes to the document, Lucas signaled that she wants some updates made. 

"As the chair controls the agenda and that publication, I of course do not want to get ahead of her. However, at a minimum, I can say that I and the rest of the commission are very aware that many stakeholders are looking for additional guidance," Lucas said. "I'm hopeful the agency will continue to lead in this area of tackling hard questions and helping employees and employers navigate the pandemic and their duties and obligations." 

During her remarks, Lucas also laid out a number of tricky disability issues that businesses are navigating as the pandemic wears on. She advised employers that they shouldn't regard the virus as a "Get Out of Jail Free card" when an employee asks for modifications to COVID-19 safety measures or the ability to skip these protocols altogether.

"A lot of people have gotten into the habit of pointing to COVID-19 as an end-all, be-all explanation," she said. "However, reasonable accommodation is mandatory even when dealing with bright-line safety measures."

The ADA mandates that employers offer disabled employees a reasonable accommodation to enjoy the same "benefits and privileges of employment" afforded to their peers who don't have a disability.

Company leaders don't have to make these kinds of adjustments if they would present "undue hardship" to the business — which regulations define as a "significant difficulty or expense" based on the resources of a particular company — but Lucas said COVID-19 doesn't always count as an "undue hardship."

"[The virus] doesn't automatically guarantee that an employer can deny as an undue hardship any requested accommodations to health and safety policy and procedures at on-site workplaces, including mask requirements," she said.

For employees with breathing problems, or who may have facial hair for religious or cultural reasons that prevent them from wearing a mask, employers should get creative in finding arrangements that work for these employees and keep their office safe.

She noted the solution doesn't always have to be telework or time off. Mask breaks for those who can only wear a facial covering for short periods of time could work for some individuals, Lucas said, or an employer could find a way to keep an employee physically distant from others on-site if the individual can't wear personal protective equipment.

There are a number of reasons why an employee may have a legitimate reason not to don a mask, and these must be evaluated on a case-by-case basis, Lucas said.

"I encourage employers to make sure they're really thinking carefully and in good faith about whether or not they can accommodate the employee requesting an ADA or religious accommodation to mask policies," she said.

--Additional reporting by Vin Gurrieri. Editing by Abbie Sarfo.

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