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Hospitals Must Consider Accommodation Requests in Pandemic

April 2, 2020, 4:33 PM

Doctors and nurses on the front lines of the novel coronavirus with health conditions of their own can request “reasonable accommodations” under the Americans with Disabilities Act, and employers must consider them despite the pandemic, according to the Equal Employment Opportunity Commission.

That doesn’t necessarily mean managers have to immediately reshuffle critically needed workers in the midst of an unprecedented health crisis, though. The ADA requires accommodations that don’t exert an “undue hardship” on the employer, which moving a doctor or nurse to different duties arguably would be. Health care providers short on personal protective equipment might not have a way to accommodate an immunocompromised worker.

But hospitals and other health care settings can’t evade the law’s requirements by citing the crisis, the EEOC said in updated guidance, after receiving almost 500 virus-related employment law questions.

“All rules are not off even in a pandemic situation,” said Michael Volpe, a partner at Venable LLP who co-chairs the firm’s labor and employment practice group.

The EEOC guidance made clear that time is of the essence in processing these requests, particularly for health-care first responders. It told employers not to let the process hamper temporary accommodations if they’re immediately warranted.

“Some employers may provide requested accommodations on a temporary basis for example, for one or two weeks, while the employer is discussing the request more fully with the employee or waiting to receive medical documentation,” said Sharon Rennert, an EEOC attorney focused on the ADA.

There are more than 215,000 confirmed cases of Covid-19, the disease caused by the coronavirus, in the U.S. as of 9:05 a.m., and many health care workers fear they’ll become patients themselves. Older workers and those with underlying medical conditions, such as those who are immunocompromised, may be more likely to be impacted by Covid-19, according to the Centers for Disease Control and Prevention.

About 1 in 5 people who have tested positive for the virus in Ohio and Minnesota are health-care workers, NBC reported, citing officials in those states.

Required Process Remains

“The basic ADA legal analysis is the same – does he or she have a disability? And, can he or she be effectively accommodated to perform essential job functions without undue hardship?” the EEOC told Bloomberg Law in an emailed statement. “The assessment of an effective accommodation and undue hardship will be made in light of the current circumstances.”

While employers are required by law to have a dialogue about whether an accommodation is reasonable, or to look for another option, employers are “not obligated to create new jobs for employees if they cannot perform the essential functions of the position even with a reasonable accommodation,” Ogletree Deakins shareholder Neil McKittrick said.

But they must provide a safe workplace.

“Employers should carefully look at the issues presented and make a determination on a case by case basis,” he said. “One can’t just say this is an undue hardship and if you are someone who is more compromised than others you still have to come to work.”

Requests Denied

Some hospitals and health facilities may have the flexibility to move frontline care workers to tasks like processing test results or administrative roles related to the pandemic, Ballard Spahr partner Denise Keyser said. Conversely, if certain departments are experiencing staffing shortages, there might not be an available accommodation.

Because most non-essential surgeries aren’t taking place, there are nurses available to step in for those who request to be removed from working with Covid-19 patients, said Andrea Acevedo, president of Service Employees International Union Healthcare Michigan.

“No one is saying to ask for accommodations that will leave you 10 nurses short,” she said.

One accommodation she said isn’t reasonable is moving a nurse who works with Covid-19 patients to check temperatures of workers entering the hospital before shifts, something she’s seen proposed as an alternative.

“That’s just putting them at a higher level of exposure,” she said.

Caregivers are “our most valuable resource” in mitigating the virus, Nancy Foster, vice president for quality and patient safety policy at the American Hospital Association, said when asked how hospitals are handling accommodations requests.

“Reasonable accommodation policies that aren’t covered under existing law, such as The Americans with Disabilities Act, will vary from hospital to hospital, and can be based on a variety of possible factors, including the caseload of COVID-19 patients and availability of other caregivers,” she said in an email.

Leaves as Alternative

Offering some form of short-term leave could be a temporary measure, management attorneys said.

The Families First Coronavirus Response Act, which was signed into law March 18, provides for paid sick leave and emergency family and medical leave. The Labor Department’s Wage and Hour division issued a final rule yesterday further detailing that up to 61 million workers could qualify for those protections.

Hospitals should look to that legislation first to see if an immunocompromised individual qualifies for paid leave, and also weigh their own policies and practices under the Family and Medical Leave Act, Volpe said.

Telework could be a solution in a number of situations, Epstein Becker Green member Nathaniel Glasser said.

“What we’re seeing is a large increase in telehealth offerings,” he said. “If there’s an opportunity to shift some of the services to telehealth, I advise employers to look at that possibility.”

Shortage of Protective Gear

Asking immunocompromised employees to come into work puts them at too much risk, Ballard Spahr’s Keyser said. There is a shortage of N95 masks and other protective equipment, even after 3M Co. announced it would make more than 1 billion masks by the end of the year.

Employers are required to maintain safe, hazard-free workplaces under the Occupational Safety and Health Act, which applies to health-care settings. One whistleblower recently alleged the U.S. Department of Health and Human Services failed to properly protect its health care workers from virus exposure, by not providing the proper equipment or training.

“I have a number of health care clients and they’re very concerned about getting PPE,” Keyser said. “If someone has an immunocompromised situation and they can’t really risk it all, getting Covid-19, then the health care provider is going to have to be in a situation where they offer them some leave.”

Kristin Rowe-Finkbeiner, co-founder and executive director of MomsRising, a policy group focused on issues like paid leave and nutrition, said reasonable accommodations are “always necessary, and even more necessary in pandemics.”

“We need to ensure the safety of our health care workers,” she said.

Nor should employers be rigid about requiring a doctor’s note to verify a worker’s disability before granting an accommodation, particularly because many doctors may be bogged down with Covid-19-related matters, the EEOC’s Rennert said. A health insurance record or a prescription could suffice, for example.

Though hospitals could argue undue burden, Volpe said, “we don’t want immunosuppressed people or others more susceptible to the virus exposed to the virus and make things even worse.”

—With assistance from Lydia Wheeler

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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