Looking back (and forward) at COVID-19 and the Interactive Process

CATEGORY: Blog Posts
CLIENT TYPE: Public Employers
PUBLICATION: California Public Agency Labor & Employment Blog
DATE: Feb 22, 2024

Though it is tempting to move on from the pandemic and to try and forget the deadly illness that started it, COVID-19 looks like it is here to stay in one form or another.  As updated on February 16, 2024, the California Department of Public Health reported a 7-day weekly average of 1,882 hospital admissions and 3.2% of deaths in the state attributable to COVID-19, with a COVID-19 test positivity rate of 7.1%.  In comparison, influenza was at a 7-day weekly average of 433 hospital admissions, .2% of deaths, and a test positivity rate of 6.5%.  Still, these numbers paint a rosy picture when compared to the height of the pandemic and for many, COVID-19 is now an afterthought as we return to offices, movie theaters, and our “normal” lives.

But as a new normal sets in, it is probably a good idea for employers to recognize and consider the following lasting effects of the COVID pandemic on their workforce.

Long COVID as a Disability

For some, living with Long COVID is the new normal.  In a September 2023 Data Brief published by the Centers for Disease Control and Prevention (“CDC”), survey data from 2022 showed that 6.9% of adults in the nation have had Long COVID at least once and 3.4% of adults actively had Long COVID at the time of the survey.  While these percentages seem small, it is important to remember that the workforce in 2022 was over 160 million strong.  Extrapolating the CDC’s survey results to that figure means that about 5.44 million members of the workforce had Long COVID.  Other gathered statistics have that figure as high as 16.3 million workers.

Long COVID symptoms can last weeks, months, or even years after contracting COVID-19.  A non-exhaustive list of common symptoms includes tiredness and fatigue, difficulty thinking (referred to as “brain fog”), shortness of breath, headache, dizziness, heart palpitations, chest pain, cough, joint or muscle pain, depression or anxiety, fever, and loss of taste or smell.  Some less common symptoms can include damage to organs, such as the heart, lungs, kidneys, skin, and brain, or autoimmune conditions.  It is even possible to develop other health conditions such as diabetes, heart conditions, blood clots, or other neurological conditions following COVID-19.

In July 2021, the United States Department of Health and Human Services Office for Civil Rights recognized that the symptoms of Long COVID can, under qualifying circumstances, be considered a disability under the Americans with Disabilities Act (the “ADA”).  To qualify as a disability under the ADA, Long COVID must cause a physical or mental impairment that substantially limits one or more major life activities, such as walking, seeing, hearing, or speaking.  As a result, Long COVID is not always considered a disability, and an individualized assessment is necessary to determine whether a symptom substantially limits a major life activity.

In California, the Fair Employment and Housing Act (the “FEHA”) provides an even broader definition of disability.  Though the ADA’s definition of disability requires that it “substantially limits” a major life activity, the FEHA definition requires only that it “limits a major life activity.”  See Cal. Gov. Code § 12926.    With potentially millions of workers still suffering from the effects of Long COVID — which may or may not qualify as a disability based on the circumstances — it is a good time to review what the law requires of employers to avoid disability discrimination when requiring employees to come back to the office.

The Interactive Process and Telework as a Reasonable Accommodation

When asking employees with disabilities to return to the office, California employers need to remember that they have a continuing obligation to engage in a “timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations.”  (Gov. Code, § 12940, subd. (n).)  Whether by the employee’s request or when the employer has knowledge of an employee’s disability, an employer must engage in the interactive process.  This is a “two-way” street that requires both the employer and the employee to participate.  While the interactive process has several nuances, at its most basic level it requires the employer and employee to work together to: (1) analyze the job position’s functions to establish essential and nonessential tasks, (2) identify precise limitations of the position, (3) find possible accommodations and assess each, (4) consider the preference of the employee, and (5) implement the accommodation that is most appropriate for employee and employer, while giving primary consideration to the employee’s preference unless another equally effective accommodation may be used instead.  Employers should document their efforts throughout.

Following the pandemic, one rising requested accommodation is telework.  Our firm has discussed telework before, and readers are encouraged to read our past guidance, available herehere, and here.  As early as 2003, the United States Equal Employment Opportunity Commission (“EEOC”) recognized telework as a possible reasonable accommodation.  So while telework as a reasonable accommodation is hardly new, the pandemic brought it into renewed focus and tested its limits.  For some, this meant suspending policies that restricted or forbade telework and building infrastructure to support remote workers; for others, it meant temporarily excusing certain essential functions to allow office closures.  Some employees even parlayed their newfound telework freedom into out-of-state, or in the rare case out-of-county, work locations.

As a result, the interactive process factual landscape may have shifted significantly during the pandemic and employers should take care to reassess whether telework is a reasonable accommodation in light of what happened during pandemic conditions.  Luckily, the EEOC has provided some guidance on COVID-19’s impact on the interactive process.  Notable highlights include that telework is not an automatic reasonable accommodation just because the employer had authorized it in order to prevent the spread of COVID-19; that the temporary excusal of one or more job position essential functions to allow telework did not permanently eliminate those essential functions; and that telework may pose an undue hardship on the employer even where the employer previously allowed it.  Similarly, employees may be able to point to telework allowed during the pandemic as “proof of concept” that telework does not impose an undue hardship on employers or that certain job functions are not truly essential.  Central to each of these positions is that the interactive process is fact-specific.

So, if you are an employer who has had thoughts about requiring a return to office, I’d suggest you keep the requirements of the ADA and the FEHA in mind.  Long COVID has affected a significant amount of the workforce and may continue to affect even more, so be on the lookout for any employees that may need a reasonable accommodation to counter that condition.  And if you do learn an employee needs a reasonable accommodation, be prepared for new pandemic-related facts to play an increasing role in your interactive process analysis.

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