Struggling businesses that consider ending costly on-the-job disability accommodations during the pandemic face a choice between financial solvency and the risk of discrimination liability.
The Americans with Disabilities Act requires reasonable accommodations for workers with disabilities, unless the accommodations cause an “undue hardship” on a business. The Equal Employment Opportunity Commission has said the pandemic’s financial impact on companies is “relevant” when considering whether an accommodation can be denied because it poses “significant” difficulties or expenses.
Expensive accommodations, such as hiring an interpreter for workers with hearing impairments or a personal assistant for an employee who requires that level of support, or removing physical barriers to ensure workplace accessibility, are less common than those with little to no costs, such as allowing a disabled employee to work a flexible schedule.
For companies struggling to stay in business during the pandemic, continuing costly accommodations can put them in a bind. But denying them could lead to litigation, where they face a high legal threshold for proving the accommodation would lead to undue financial hardship, attorneys said.
“I think any company that’s in this position is much more likely to just figure out a way to make this work, which is what the EEOC would want them to do anyway,” said Jon Zimring, a shareholder with Greenberg Traurig, who advises employers.
Expensive accommodations also have alternatives, said Margaret Nygren, executive director and CEO of the American Association on Intellectual and Developmental Disabilities. Covid-19 has forced employers to be creative and collaborative when considering reasonable accommodations, which could benefit both parties in financially tight situations, attorneys said.
“Covid hasn’t changed the rules about what you have to do if you experience a business setback,” Nygren said. “The first step is talking about a lower-cost accommodation.”
Legally, a worker could be terminated if an employer and employee can’t agree on a less expensive alternative that meets the ADA’s standard for a reasonable accommodation; but, in practice, attorneys interviewed for this article said they hadn’t seen that happen.
During the public health emergency, accommodations that protect the health and safety of a worker with a disability are as essential as traditional accommodations, Nygren said.
“People with disabilities want to work, but going to work does increase the likelihood of being exposed to Covid-19, and contracting the virus may be particularly dangerous to them,” she said.
The EEOC has said a financial hardship doesn’t give employers the right to reject any accommodation that costs money. Instead, they must “weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic,” it said.
Cost is a consideration relative to each employer, said Shaylyn Cochran, a partner with Cohen Milstein in Washington, D.C., who represents workers in employment law disputes. Smaller businesses, for example, might find it more challenging to accommodate more expensive accommodations than multinational corporations.
“That dollar amount means nothing to say, Walmart, but it might mean everything to that mom-and-pop shop,” Nygren said.
But the pandemic hasn’t changed the high bar employers must meet to prove that financial hardship is reason enough to deny a reasonable accommodation, and doing so could be yet another expense, while also exposing the company’s finances in court, Zimring said. An employer’s entire budget, not just the worker’s business unit, must be considered when determining whether an accommodation is too costly.
“They don’t want their financial picture to be part of evidence in a case,” he said.
The potential bind might not scare away employers from trying to avoid a costly accommodation, Cochran said, and the guidance’s “road map” may inspire them to do so, in light of the ongoing pandemic and resulting recession.
The U.S. Court of Appeals for the Fourth Circuit waded into the issue of expensive accommodations in a case involving a blind call center worker. She brought a failure-to-accommodate lawsuit after her government employer denied her request for an audio program that helped her access computer software.
In that case, a jury found that a Maryland county didn’t prove that the accommodation would pose an undue hardship. After years of litigation, the county eventually changed the worker’s job duties to exclude those that couldn’t be completed without the software, among other efforts. The Fourth Circuit found the job restructuring to be reasonable, highlighting that although the ADA doesn’t require an employer to cut out an essential job function to accommodate a worker, it can be done if feasible, as in this situation.
Start From Scratch
Practically, companies facing the cost conundrum can likely come up with an alternative solution to a more costly request, attorneys said. The interactive process established by the ADA allows for this creativity and collaboration, and requires it, Nygren said.
For example, there is technology available that converts spoken words to type that could be an option for a worker with a hearing impairment, or a job description could be changed to mandate communication in writing only, she said.
“This is what you have to do under the ADA, anyways,” Nygren said.
Despite ADA protections, discrimination against workers with disabilities persists, according to the National Disabled Law Students Association.
“While NDLSA can acknowledge the position of uncertainty that many companies are facing during the current COVID-19 pandemic, we want to strongly refute the idea of a binary choice between accessibility for employees with disabilities and financial hardship,” members of the association said in an email.
Terminating a worker is a last resort, said Cohen Milstein’s Cochran, and one that she said she hasn’t seen employers make.
“Even if someone says this is too expensive, that doesn’t stop the conversation,” she said. “That’s the beginning of the conversation.”
More back-and-forth might be required to come up with a solution, and Herrick Feinstein partner Carol Goodman has advised employers to spend the time to speak with the employee about other possible alternatives.
“Sometimes it just takes a little extra research to have a cost that’s not prohibitive,” she said.