Employment Accommodations During COVID-19

Published: September 10, 2020

(Updated August 3, 2021)

Important disclaimers:

  • This is the best information as of August 3, 2021.
  • We are in unprecedented times with the COVID-19 pandemic. There is no perfect playbook to follow. Please note, this guidance is mostly untested in courts, so it is crucial for you to work with your legal counsel to determine the best course of action for your specific city.
  • These guidelines complement existing information included on the League’s other employment-related COVID-19 pages, including:

Get answers to these FAQs about employee accommodations:

Q1. I have an employee whose job requires her to work from a city building, but she says she does not feel safe working in the office, and she wants to work from home. She points to the governor’s Executive Orders 20-56, 20-74, and 21-01, which state “any worker who can work from home must do so.” What should I do? (Updated July 19, 2021)

Q2. My employee refuses to come to work due to concerns about a family member’s underlying health condition. What should I do? (Updated July 19, 2021)

Q3. I have an employee who tested positive for COVID-19 over the weekend and was in the office last week. What steps should I consider taking? (Updated July 19, 2021)

Q4. If I hear that my quarantined employee is out in public, what can I do? (Updated Feb. 3, 2021)

Q5. I heard something different from guidance the League has provided. What should I do?

Q6. Can a city require its employees — all its employees, only unvaccinated employees, etc. — to wear a mask in the workplace now that the state mask mandate has been lifted? (Added July 19, 2021)

Q7. We have an employee who contracted COVID-19 over nine months ago, and the employee is still seeking reasonable accommodations for extreme fatigue related to the illness. What’s next? (Added August 3, 2021)

Managing work-from-home requests

Q1. I have an employee whose job requires her to work from a city building, but she says she does not feel safe working in the office, and she wants to work from home. What should I do?

A1. The first step is to stop and consider whether the employee truly does need to be at the city building in order to perform her essential functions. Has the city thoroughly considered options for performing work remotely? Many office workers are able, through use of technology, to effectively perform their duties completely off-site and did so for nearly a year or longer. Additionally, the EEOC has encouraged telework as an accommodation. In the event telework is not reasonable, document those reasons.

Once that analysis is done, then it is important to learn more about what is driving the employee’s concern. The employee may be able to have a doctor provide a note stating that the employee is an at-risk individual.

Keep in mind, all employers will want to engage in an interactive process under the ADA before concluding accommodations cannot be made for an individual. In question D.6 of its COVID-19 Technical Assistance Questions and Answers, the EEOC notes that an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he or she requested or any other.

Possible questions for the employee may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his or her position (that is, the fundamental job duties).

Learn more about having an interactive discussion from the Job Accommodation Network

Within the interactive approach with the employee reluctant to return to work, the employer can explore the reasons and how they may be addressed. The possibility of flexible scheduling and intermittent use of leave, by agreement by both the employer and the employee, would be a useful (and possibly necessary) tool to fulfill your ADA obligations but also possibly learn of some approaches that could work to address both yours and the employee’s concerns.

Consider in that discussion whether the employee could come in at hours where he or she is the only individual working. Or is there any work that can be accomplished remotely? Sometimes telework because of the COVID-19 pandemic can serve as a trial period to demonstrate whether an employee can satisfactorily perform all essential functions while working remotely. Consider options listed under “Reasonable accommodations” in this Minnesota Cities magazine article as well.

Perhaps there may be a blend of solutions discovered once the interactive discussion is undertaken with the employee.  Of course, it takes two participants to discuss options, so if the employee is unwilling to discuss it, the employer will have to act on the information it has, which may include requiring the employee to report for work at a city facility and disciplining an employee who refuses to do so. Please work with your legal counsel to document the city’s efforts and accommodations offered, as well as the fact that the employee has turned down all accommodations offered, before proceeding down the discipline path. Remember, the ADA and other laws require any associated medical documentation the city possesses as part of this process to be safeguarded to ensure others cannot access the protected information.

While the city cannot disclose an employee’s medical condition to others, the EEOC notes  that it is permissible to advise staff needing to know how to contact the employee working remotely and to share that the employee is working even if not present in the workplace, without saying why. (See question B.7 of the EEOC’s COVID-19 Technical Assistance Questions and Answers.) The EEOC also noted, and Minnesota courts have decided under the Minnesota Government Data Practices Act, that if an employee is on leave rather than teleworking because he or she has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

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Q2. My employee refuses to come to work due to concerns about a family member’s underlying health condition. What should I do?

A2. To avoid running afoul of the Genetic Information Nondiscrimination Act (GINA), cities will want to steer clear of asking employees any questions about family medical history (including those on standard medical forms), including a blanket question of whether they have any family members who have COVID-19 or symptoms associated with COVID-19. GINA, however, does not prohibit an employer from asking employees whether they have had contact with anyone diagnosed with COVID-19 or who has symptoms associated with the disease. In fact, when requesting medical information, cities will want to include a GINA disclaimer on the request form including language such as:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law.

To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Of course, if the employee raises concerns about coming to work, it is important to learn more about what is driving that concern.

The employee’s family member may be able to have a doctor provide a note stating that he or she is an at-risk individual.

Keep in mind, although not required for a situation where an employee’s family member has an underlying medical condition, employers are encouraged to engage in an interactive process under the ADA before concluding accommodations cannot be made for an employee. See question D.13 of the EEOC’s COVID-19 Technical Assistance Questions and Answers.

—Learn more about having an interactive discussion from the Job Accommodation Network

Within the interactive approach with the employee reluctant to return to work, the employer can explore the reasons and how they may be addressed. The possibility of flexible scheduling and intermittent use of leave, by agreement by both the employer and the employee, would be a useful (and possibly necessary) tool to fulfill your ADA obligations but also possibly learn of some approaches that could work to address both yours and the employee’s concerns.

Consider in that discussion whether the employee could come in at hours where he or she is the only individual working. Or is there any work that can be accomplished remotely? Perhaps, there may be a blend of solutions discovered once the interactive discussion is undertaken with the employee.

Of course, it takes two participants to discuss options, so if the employee is unwilling to discuss it, the employer will have to act on the information it has, which may include requiring the employee to report for work at a city facility and disciplining an employee who refuses to do so. Please work with your legal counsel to document the city’s efforts and accommodations offered, as well as the fact that the employee has turned down all accommodations offered, before proceeding down the discipline path. Keep in mind, the ADA and other laws require any associated medical documentation the city possesses as part of this process to be safeguarded to ensure others cannot access the protected information.

While the city cannot disclose an employee’s family medical condition to others, the EEOC notes that it is permissible to advise staff needing to know how to contact the employee working remotely and to share that the employee is working even if not present in the workplace, without saying why. (See question B.7 of the EEOC’s COVID-19 Technical Assistance Questions and Answers.) The EEOC also notes, if an employee is on leave rather than teleworking because he or she has COVID-19 or symptoms associated with the disease, or any other medical condition, then an employer cannot disclose the reason for the leave, just the fact that the individual is on leave.

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Protocol for an employee testing positive in the workplace

Q3. I have an employee who tested positive for COVID-19 over the weekend and was in the office last week. What steps should I consider taking?

A3. See question 2 on the League’s web page City Employment Issues During COVID-19 Pandemic. The bullet points outlined in that answer can be helpful to walk through with this question.

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Q4. If I hear that my quarantined employee is out in public, what can I do?

A4. The League called the Minnesota COVID Hotline at (651) 201-3920 and learned, unfortunately, you may not be able to do anything in this situation from an employment perspective.

If the employee has tested positive for COVID-19 and is public safety personnel or holds a higher-level position in the workplace, there may be an opportunity to explore possible discipline, but a city will want to be careful and be sure to consult with their city attorney and the League of Minnesota Cities.

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Conflicting COVID-19 information

Q5. I heard something different from guidance the League has provided. What should I do?

A5. We are in uncharted waters with the COVID-19 pandemic, and unfortunately not all the guidance released by the Department of Labor and other agencies addresses each specific situation found in the workplace. While we try our hardest to provide the most up to date information to our members, the COVID-19 landscape is constantly evolving. In this environment, it is so helpful when we can all share information on unique questions as they arise. To that end, the League welcomes your thoughts and perspectives if you see differing information. Working together, we can learn together.

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Q6. Can a city require its employees — all its employees, only unvaccinated employees, etc. — to wear a mask in the workplace now that the state mask mandate has been lifted?

A6. Yes, most likely, a city can require its employees — either all employees or only unvaccinated employees — to wear masks, even if there is no state or local mask mandate in place. (Please refer to Q7 on the Vaccination of City Employees for COVID-19 web page for information regarding inquiring about employee vaccinations and retaining information.) As cities may recall, on May 13, 2021, the Centers for Disease Control and Prevention (CDC) released new recommendations advising that vaccinated people are not required to wear face coverings in most places, and on May 14, 2021, E.O. 21-23 removed the face mask requirement for fully vaccinated persons. However, OSHA permits employers to require masks for unvaccinated employees, and it has been argued that requiring masks for unvaccinated employees may be a method to ensure compliance with OSHA’s General Duty Clause whereby employers furnish to employees, “… a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” If an employee refuses to wear a mask, the city will want to explore more about what is going on with the employee to determine whether reasonable accommodations are available, including asking if the employee has any documentation to support the medical condition that prevents the employee from wearing a mask. Remember that employers can request information/documentation regarding an employee’s health condition and inability to wear a mask. Question G.2 from the Equal Employment Opportunity Commission’s (EEOC) COVID-19 Technical Assistance Questions and Answers can be a helpful reference as well. For additional information on COVID-19 vaccinations and city employees, please refer to the Vaccination of City Employees for COVID-19 web page.

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Q7. We have an employee who contracted COVID-19 over nine months ago, and the employee is still seeking reasonable accommodations for extreme fatigue related to the illness. What’s next?

A7. First of all, we are very sorry to hear your employee is struggling with residual health issues as a result of COVID-19, often to what some health professionals refer to as “COVID long-haulers.” For COVID long-haulers, persistent symptoms often include brain fog, fatigue, headaches, dizziness, and shortness of breath, among others. Generally speaking, it is important the city continues reasonable accommodations discussions with the employee. On July 26, 2021, President Biden stated that long-term COVID-19 symptoms can rise to disability level under the federal Civil Rights Act. The EEOC has issued a helpful information, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, and Section D covers various questions relating to reasonable accommodations. As cities are aware, under the ADA, reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. If a reasonable accommodation is needed and requested by an individual with a disability to apply for a job, perform a job, or enjoy benefits and privileges of employment, the employer must provide it unless it would pose an undue hardship, meaning significant difficulty or expense. An employer has the discretion to choose among effective accommodations. Where a requested accommodation would result in undue hardship, the employer must offer an alternative accommodation if one is available absent undue hardship, (i.e., “significant difficulty or expense”). In discussing accommodation requests, cities may find it helpful to consult the League’s HR & Benefits team and the Job Accommodation Network (JAN). Ask Jan offers some great information on the ADA interactive discussion process.

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