Modified work schedules are receiving increasing attention as a reasonable accommodation for employees with disabilities. On May 15, 2013, the Equal Employment Opportunity Commission (EEOC) issued four new “Question and Answer” guidance documents (available at www.eeoc.gov/laws/types/disability.cfm) which highlight specific types of reasonable accommodations for persons with cancer, diabetes, epilepsy, and intellectual disabilities. All four documents listed a modified work schedule as a suggested accommodation. But what exactly is a modified work schedule? And when is a modified schedule reasonable or unreasonable, regardless of the impairment at issue? The questions present complex, fact-intensive problems. Fortunately, recent case law across the country provides some practical guidance for employers and employees alike.
The Americans with Disabilities Act (ADA) prohibits employers from discriminating against a “qualified individual with a disability” because of a disability. 42 U.S.C. § 12112; 29 C.F.R. § 1630.4. The ADA also requires employers to grant reasonable accommodation if it would enable an individual to perform the essential functions of the job unless the employer demonstrates that the accommodation would impose an undue hardship on its business. 42 U.S.C. § 12112; 29 C.F.R. § 1630.9. A reasonable accommodation is any change in the work environment or to work practices that allows the disabled individual to enjoy equal employment opportunity. For example, time off for medical appointments and ergonomic office equipment can be reasonable accommodations.
Under the ADA, a modified work schedule can be a reasonable accommodation. According to informal guidance from the EEOC, a modified work schedule can involve adjusting arrival or departure times, changing shift assignments, providing periodic breaks, altering when certain work functions are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave. See EEOC Enforcement Guidance No. 915.002 (Oct. 17, 2002) (available at www.eeoc.gov/policy/docs/accommodation.html).
Special Accommodations during COVID-19
The coronavirus pandemic has affected us all, but none more than those who are at risk of death from the disease. According to the CDC, people with asthma, kidney disease, lung disease, diabetes, hemoglobin disorders, immune deficiency, liver disease, or severe heart conditions or obesity are at a much higher risk of death should they contract COVID-19. In addition, people aged 65 or over make up a disproportionately large percentage of the deaths from this disease.
The Americans with Disabilities Act (ADA) protects employees from being discriminated against because of their disabilities. The ADA also mandates that employers make special accommodations for employees with disabilities. In addition, the Occupational Safety and Health Administration (OSHA) requires employers to provide a safe working environment for their employees. Because of COVID-19, employers should implement the following in order to ensure a safe working environment for their employees:
- Sanitizing all workspaces frequently
- Redesigning workspaces to limit person-to-person contact
- Providing personal protective equipment (PPE) for employees
If you have been terminated or retaliated against because you have insisted on a clean working environment, we can help. If you have been denied special accommodations because of your disabilities or terminated or retaliated against because you have asked for special accommodations, contact us immediately.
Contact our offices if you have questions about workplace accommodations or the ADA. Our employment and disability attorney can help you.