By Meghan Droste, July 15, 2020
In last month’s Tips From the Other Side, I covered the factors the Commission uses to determine how long is too long to providing a reasonable accommodation. (Quick recap: It depends, but you should move as quickly as possible. The Commission will look at who caused the delay and what the Agency did in the meantime, so ensure you have clear documentation of the steps the Agency took to provide the accommodation and provide interim accommodations when possible.)
Here’s a follow up question for you: How long is too long in the time of COVID? Or put more precisely, do agencies get a free pass on processing requests for accommodations that are only needed in the office while everyone is working from home? In its COVID-related guidance, the Commission has said no, that’s not quite how it works. Agencies are allowed to prioritize requests for accommodations employees need right now as they telework or for those employees who have continued to work in agency facilities throughout the pandemic. But that does not mean you should just stick all other requests in a drawer until sometime when employees are back at their (office) desks.
The Commission recommends that employers still engage in the interactive process during the pandemic and gather all of the necessary information to process the request. Agencies should, of course, keep in mind that employees may need a lot more time than usual to obtain medical documentation, as doctors may be overwhelmed with other appointments and employees who cannot meet virtually with care providers may have limitations on seeing a provider in person. Agencies should also use this time to start making arrangements for approved accommodations, such as ordering any necessary equipment as delivery times may be extended due to the pandemic.
For those employees who need accommodations right now — whether for working from home or for those employees at or returning to the worksite — the Commission also recommends considering temporary or interim accommodations without undergoing the interactive process so as to provide accommodations as quickly as possible during this unusual and difficult time. If your agency chooses to do provide these types of accommodations, the Commission recognizes that it may be appropriate to put an end date on the accommodation, such as a specific date or when an employee returns to the office. Once you reach that point, or ideally as you are coming up to the end date, you can check in with the employee about any ongoing or new needs for accommodations and engage in the more traditional interactive process at that time.
The Commission’s COVID-related guidance is available here. I encourage you to read it along with the Commission’s other pandemic-related resources. Droste@FELTG.com