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Not immune from change

A guide to approaching ADA medical accommodation requests to telework by immunocompromised employees in light of the covid-19 pandemic

By Jack Finck and Colin Hunter Hargreaves

Minneapolis skyways are filling again, copy machines have resumed their hum, and pets are getting lonely as Minnesota employers have started solidifying their return-to-work plans for their employees. We all are excited to go back to our pre-pandemic lives, but this excitement may carry unpredictability for many workers, employers, and human resource professionals (as well as the employment attorneys advising them).

Prior to the covid-19 pandemic, it was rare for employees to request permission to work from home. But now many employees have experienced working from home as employers have incorporated technology and changed their business practices to facilitate telework due to a web of public health guidance and mandates. This reality may bring an increase in accommodation requests to telework by immunocompromised employees, among others. This article will briefly explore this novel, but increasingly relevant, area of law and provide some practical considerations for practitioners.


Covid-19 redefined the workplace

An astounding 70 percent of employed Americans were working from home at least part time at some point during the pandemic.1 In Minnesota, more than 600,000 employees teleworked.2 Notably, a survey revealed that 45 percent of companies expected to maintain a hybrid work model after the pandemic forced them to pivot and learn how to operate seamlessly with a remote presence.3 Remote models are alluring; employers can maintain efficiency while reducing the overhead of large offices, and employees can avoid rush-hour traffic and parking contracts. Not surprisingly, the entire world has become more adept at video conferencing, and many home offices are more comfortable than fluorescent-lit workplaces. The market reflects this change. A popular video-conferencing platform increased its revenue by 369 percent in 2020, leading to an adjusted profit of almost $1 billion.4 To put it plainly, both employers and employees have become well-adjusted to working from home.
The United States took drastic action to modify the office work model after the World Health Organization declared covid-19 a pandemic. Doctors, epidemiologists, scientists, and public health professionals responded by advising—and in some cases mandating—workers to stay home to “stop the spread” in order to reduce hospital crowding and protect high-risk individuals. Among those in this high-risk population are those who are considered “imimunocompromised.”

Immunocompromised individuals

An immunocompromised individual is someone who has an impaired or weakened immune system.5 Examples include people who have chronic diseases such as lupus or type 1 diabetes, receive medical treatments such as chemotherapy, have recently had bone marrow or organ transplants, or are of an advanced age.6 More than 4 percent of adults in the United States have been told by a doctor that they are immunocompromised.7 Being immunocompromised not only makes it easier to get sick, but also makes it harder to recover from sickness. Influenza viruses result in significantly more hospitalizations, ICU admissions, and mechanical ventilation for immunocompromised individuals than for those with uncompromised immune systems.8 During the pandemic, the term “immunocompromised” has grown to include (colloquially) individuals with medical conditions that place them at an increased risk of severe illness from covid-19. For example, a few factors labeled by the U.S. Centers for Disease Control and Prevention (CDC) include pregnancy, smoking, and obesity.9

Weakened immune systems are not new. What is new is the growing understanding of the involved dangers. The word “immunocompromised” has gained relevance through the pandemic. In fact, at the time of the writing of this article, the term was in Merriam-Webster’s top 1 percent of searched words,10 and it is commonly found in news accounts and employer updates regarding the pandemic. It would have been difficult to go through the past two years without learning more about the transmission of viruses and the risk that they pose to the immunocompromised.
This heightened public awareness may now more strongly affect how accommodation requests are analyzed by employers (and, if it comes to litigation, by judges and juries). In addition, a large number of immunocompromised employees have experienced the convenience and safety of telework. These two factors may bring an increase in accommodation requests from immunocompromised individuals.

Americans With Disabilities Act (ADA) and Minnesota Human Rights Act (MHRA)

Many employers know that the ADA and MHRA prohibit discrimination against individuals based on their disability.11 One form of discrimination involves an employer’s denial of a reasonable accommodation to a qualified applicant or employee12 with a disability, unless the employer can show that doing so would impose an undue hardship on the business.13 Whether an applicant or employee is entitled to a reasonable accommodation, and what that entails, must be analyzed on a case-by-case basis. That is, there is no “one size fits all” reasonable accommodation for any disability.

Disability defined

The ADA defines “disability” as, inter alia, “a physical or mental impairment that substantially limits one or more major life activities of such individual.”14 If an employee’s condition satisfies this definition, then the condition is considered a disability under the ADA and MHRA.15 The definition contains three key defined terms: (1) “physical or mental impairment,” (2) “substantially limits,” and (3) “major life activity.”

“Physical or mental impairment” means “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more bodily systems, such as… [the] immune [system].”16 In other words, under this definition, the weakened immune system must be tied to some sort of disorder or condition, whether chronic or acute. This requirement precludes a large number of individuals with higher risk factors identified by the CDC. For example, smoking and advanced age, although linked to heightened risk of becoming severely ill from covid-19, would not meet the definition of a disability, much less an immunnocomprised disability, because neither of the risks is a physiological disorder or condition.17 Courts have also routinely held that pregnancy is not a per se disability under the ADA for the same reason.18 In contrast, the 8th Circuit Court of Appeals has held that an employee’s weakened immune system that was a long-term health effect of treatment for Hodgkin’s lymphoma is a disability covered under the ADA.19

The next defined term is “substantially limits.” This term is “construed broadly in favor of expansive coverage” and “is not meant to be a demanding hurdle.”20 But the requirement is still relevant. In 2018, the 8th Circuit determined the plaintiff had failed to show her weakened immune system, caused by a seizure disorder, substantially limited her ability to perform major life activities with regard to her sensitivity and allergic reactions to certain vaccinations.21 The court concluded that the record established only that the woman had “garden-variety allergies to various items that moderately impact[ed] her daily living.”22 Similarly, an immunocompromised employee’s fear of contracting a virus without corroboration, such as past hospitalization, documentation from specialists, or medication, may not meet this definition of “substantially limits.”23

The final defined term is “major life activities.” This term generally refers to things like “caring for oneself, performing manual tasks, seeing, hearing, eating, [or] sleeping,” among other things, but “also includes the operation of a major bodily function, including but not limited to, functions of the immune system.”24 An employee generally meets the definition of “major life activities” by being immunocompromised.

An immunocompromised employee who satisfies all three definitions discussed above likely has a disability under the ADA. Of course, an immunocompromised employee who has “a record of such an impairment” or is “regarded as having such an impairment” may also meet the ADA’s definition, but the latter two are outside the scope of this article.

Qualified individual

A “qualified individual with a disability” is one who “satisfies the skill, experience, education and other job-related requirements of the employment position… and, with or without a reasonable accommodation, can perform the essential functions of such position.”25 

The interactive process 

At this point, it should be second nature for employers to engage the employee in the “interactive process” to determine whether the employee requires an accommodation and what types of accommodations, if any, the employer can provide.26 This process is situation-specific. In some instances, the extent or nature of an illness may not be immediately apparent. It is important to note that employers may inquire “into the ability of an employee to perform job-related functions,”27 but an employer is prohibited from asking about or requiring a medical examination to determine the nature or severity of the condition unless it is specifically job-related and consistent with business necessity.28 Thus, employers may want to exercise caution with their questions or requests for medical documentation that are specifically related to the employee’s ability to work.

The ADA does not require employers to provide an accommodation if doing so would impose an “undue hardship.”29 An accommodation is an undue hardship if it causes “significant difficulty or expense” to the employer.30 This “undue hardship” requirement has traditionally been a difficult hurdle for employees requesting an accommodation to telework, as courts across the country have been previously reluctant to recognize telework as a reasonable accommodation prior to the pandemic.31 Minnesota and the 8th Circuit were no exceptions.32 In fact, the 8th Circuit has “repeatedly held that regular and reliable attendance is a necessary element of most jobs.”33

Thirteen months before Minnesota’s first positive covid-19 test,34 the 8th Circuit affirmed the denial of an employee’s accommodation request to telework by the Minnesota City of Oak Park Heights. Gary Brunkhorst was the senior accountant/payroll technician for the City of Oak Park Heights.35 Brunkhorst suffered long-term injuries after having what the court described as “a rare, life-threatening disease commonly known as ‘flesh-eating’ bacteria.”36 Prior to contracting the disease, Brunkhorst had been able to complete some of his work from home. Among other things, Brunkhorst requested a 120-day period to telework to help him transition back to work. The city denied his accommodation request.

Brunkhorst alleged violations of the ADA and MHRA. The 8th Circuit affirmed the district court’s order granting summary judgment in favor of the City of Oak Park Heights. The court concluded that Brunkhorst’s request to work from home was a preference and not a need, especially since telework was not specified as a restriction by his doctor. The court also concluded that Brunkhorst could not complete the essential functions of his job remotely. This decision was based on Brunkhorst’s testimony that another employee would have to scan certain documents for him and routinely bring things to his house, and the city administrator’s testimony that Brunkhorst’s position required physical presence at city hall to interact with the public and cover for other staff.

According to a 2019 Bloomberg Law survey, “Employers won 70 percent of the rulings over the past two years on whether they could reject workers’ bids for telework as an accommodation for a disability.”37 Many wonder how the significant increase in telework during the pandemic might change things going forward. The 7th Circuit has recognized that “[t]echnological development and the expansion of telecommuting” is making telework more common and feasible.38 Now corporate America has shown its ability to work remotely,39 and the courts have also experienced and seen the effectiveness of telework firsthand.40 In addition, the case law in this area is in flux and continues to change/evolve with each passing week.

What this means for employers subject to the ADA

The primary takeaway for employers and practitioners is that, even after the pandemic, employees who are immunocompromised and meet the definition of individuals with disabilities under the ADA may be entitled to telework as a reasonable accommodation as long as teleworking allows them to perform the essential functions of their jobs.41
But the fact that telework is possible does not mean that employers must grant every telework accommodation request. According to guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC), if the employer excused certain essential functions while permitting an employee to telework during the pandemic, the employer does not have to grant a subsequent telecommute accommodation request if doing so would continue to excuse the performance of essential functions.42 However, the EEOC guidance states that teleworking during the pandemic “could serve as a trial period” for whether that employee “could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.”43

Practical considerations

With a potential wave of requests to telework on the horizon, practitioners should consider proactively preparing their clients to engage employees in the interactive process. A good first step is to encourage clients to review the company’s job descriptions (or at least have them handy). Clearly defining the requirements of every position will help companies distinguish between positions that lend themselves to remote work versus those that require an in-office presence. Employers will then be prepared when confronted with an accommodation request.
Below are a few additional considerations when working with your clients on telework accommodation requests by employees. The following are merely suggestions and ideas for practitioners and are in no way intended to be legal advice.

1. Review the law and agency guidance. Review the ADA and MHRA and related answers to frequently asked questions44 (including the EEOC’s covid-19-specific technical assistance questions and answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”45).
2. Understand the company’s accommodation request process. You may want to become familiar with your client’s accommodation request process in order to successfully walk your client through the proper steps. Along with that, practitioners may want to refresh their recollections and review client policies and past practices to ensure the policies and practices comply with legal requirements attendant to the interactive process.
3. Create a template. Consider reminding employers of their obligations to engage in meaningful discussion toward finding a solution that works for both parties. Consider discussing the full picture of the law so the employer is careful to avoid inappropriate questions, and consider providing an outline or template of questions.
4. Determine if the employee is covered. It is generally a good idea to ask questions about the employee’s ability to perform various job functions. Remind employers to ask for things that are job-related.
5. Determine whether telework would be an undue burden. Analyze the employee’s responsibilities in his or her current position and whether those responsibilities can be completed remotely. In addition, consider the impact (whether financial or otherwise) that the requested accommodation may have on the business.
6. Be creative. Consult the work restrictions outlined by the employee’s doctor to identify alternate accommodations that might satisfy the restrictions. Remember, an employer does not have to provide the employee with his or her preferred accommodation.
7. Notify the employee of the decision. If the employer plans to deny the request, it is often prudent to communicate this decision promptly to the employee. The employer should consider also citing the job description of the employee’s position in any corresponding documentation outlining the decision. If the employer accepts the accommodation request, it may be advantageous for the employer to be clear about its expectations of the employee, including the duration of the accommodation and at what point the company plans to re-analyze the situation.
8. Document, document, document. Any discussion with the employee should be memorialized in writing. Any decision made and the reasons for those decisions should also be documented.
9. Maintain confidentiality. The law requires employers to keep the employee’s medical documentation private.


In conclusion, employers may see an increase in accommodation requests from immunocompromised employees because of the safety and convenience of telework. Employees who have been working remotely during the pandemic may also expect their employers to allow telework as the default accommodation. Practitioners may want to prepare their employer clients by using the steps outlined above.


JACK FINCK is an associate attorney at Ratwik, Roszak & Maloney, P.A., where his practice includes employment law and general counsel matters for the firm’s public clients. Before joining Ratwik, Jack clerked for four judges at the Minnesota Court of Appeals.

COLIN HUNTER HARGREAVES is an associate attorney in the Minneapolis office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Colin counsels employers on myriad employment law issues and tells his client’s story to secure positive results in administrative proceedings, arbitration, and civil litigation.


Notes:

1 Lydia Saad and Adam Hickman, Majority of U.S. Workers Continue to Punch In Virtually, Gallup (2/12/2021), https://news.gallup.com/poll/329501/majority-workers-continue-punch-virtually.aspx .
2 Cameron Macht, Teleworking During the Pandemic, MN DEED (March 2021), https://mn.gov/deed/newscenter/publications/trends/march-2021/telework-during-pandemic.jsp .
3 Eric Rosenbaum, The Latest Numbers on How Many Workers Will be Returning to Offices, and How Often, CNBC (7/8/2021), https://www.cnbc.com/2021/07/08/how-many-workers-will-be-returning-to-offices-and-how-often.html .
4 Joe Swartz, Jeremy C. Owens, Zoom Earnings Roared to Nearly $1 Billion in 2020, and the Stock is Rising Again, MarketWatch (3/2/2021), https://www.marketwatch.com/story/zoom-earnings-roared-to-nearly-1-billion-in-2020-and-the-stock-is-rising-again-11614633824 .
5 Merriam-Webster, https://www.merriam-webster.com/dictionary/immunocompromised (last visited 11/12/2021).
6 David Porter, What You Need to Know About Being Immunocompromised During COVID-19, PennMedicine (5/13/2020), https://www.pennmedicine.org/updates/blogs/health-and-wellness/2020/may/what-it-means-to-be-immunocompromised .
7 Caroline Helwick, Immunosuppression Surprisingly Prevalent in American Adults, Medscape (11/2/2016), https://www.medscape.com/viewarticle/871290 .
8 Leah Molloy, Selena Warminski, Preventing and Treating Flu in Immunocompromised Patients: 2019-2020 Update, Healio (9/23/2019) https://www.healio.com/news/infectious-disease/20190909/preventing-and-treating-flu-in-immunocompromised-patients-20192020-update .
9 People with Certain Medical Conditions, CDC (Updated 12/14/2021), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html .
10 Merriam-Webster, https://www.merriam-webster.com/dictionary/immunocompromised (last visited 11/12/2021).
11 42 U.S.C. §12112(a); Minn. Stat. § 363A.08, subd. 1.
12 This article uses the term “employee” interchangably to refer to both applicants and employees.
13 42 U.S.C. §12112(b)(5)(A); Minn. Stat. § 363A.08, subd. 6.
14 42 U.S.C. §12102(1). The ADA also defines “disability” as someone with “a record of such an impairment” or “being regarded as having such an impairment.” 42 U.S.C. 12102(1)(B)-(C). For the purposes of this article, we focus in on the first definition.
15 Courts have previously held that “[t]he MHRA mirrors the ADA, and courts apply the same analysis in evaluating claims brought under both acts.” Stafne v. Unicare Homes, Inc., No. 97-470, 1999 WL 1068490, at *6 (D. Minn. 1999).
16 29 C.F.R. §1630.2(h).
17 In fact, it may even be a form of age discrimination in certain circumstances to assume someone’s advanced age as a risk factor and exclude them from various terms, conditions, and privileges of employment. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. EEOC (last visited 1/11/2022), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#H .
18 See McCarty v. City of Eagan, 16 F. Supp. 3d 1019, 1027 (D. Minn. 2014) (stating that no court holds pregnancy as a per se disability, but pregnancy complications may constitute a disability); EEOCCM §902.2(c)(3), 2009 WL 4782107 (11/21/2009) (“Because pregnancy is not the result of a physiological disorder, it is not an impairment.”)
19 Oehmke v. Medtronic, Inc., 844 F.3d 748, 750, 756 (8th Cir. 2016).
20 29 C.F.R. §1630.2(j)(1)(i).
21 Hustvet v. Allina Health System, 910 F.3d 399, 411 (8th Cir. 2018).
22 Id.
23 See id. (noting that the plaintiff had never been hospitalized for an allergy, had never seen an allergy specialist, and did not carry an EpiPen).
24 42 U.S.C. §12102(2)(B).
25 29 C.F.R. §1630.2(m).
26 Id. at (o)(3). Importantly, the Minnesota Supreme Court held that the MHRA does not require an employer to engage in an interactive process when determining whether reasonable accommodations can be made. McBee v. Team Industries, Inc., 925 N.W.2d 222, 229 (Minn. 2019). Thus, this analysis changes for employers not subject to the ADA (i.e., having less than 15 employees).
27 42 U.S.C. §12112, subd. 4(B). 
28 42 U.S.C. §12112(d)(4)(A). The EEOC has defined “job-related and consistent with business necessity” as: “Generally, a disability-related inquiry or medical examination of an employee may be ‘job-related and consistent with business necessity’ when an employer ‘has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.’” Find EEOC Technical Assistance Enforcement Guideance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA at: https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#5 .
29 Id. at subd. 5(A). An employer also does not have to grant the employee’s preferred accommodation if another accommodation would allow the employee to perform the essential functions of the position. Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir. 1999).
30 42 U.S.C. §12111(10)(A).
31 Solloway v. Clayton, 738 F, App’x 985, 987-88 (11th Cir. 2018); E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 763-66 (6th Cir. 2015).
32 See Morrissey v. General Mills, Inc., 37 F. App’x 842 (8th Cir. 2002) (concluding that telework accommodation would place an undue burden on employer); see also Brannon v. Luco Mop Co., 521 F.3d 843, 849 (8th Cir. 2008) (“[R]egular attendance at work is an essential function of employment”); Pickens v. Soo Line R.R. Co., 264 F.3d 773, 777 (8th Cir. 2001) (stating that regular, reliable attendance is an essential function of nearly all positions).
33 Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 850 (8th Cir. 2002).
34 Health Officials Confirm First Case of Novel Coronavirus in Minnesota, MN Dept. of Health (3/6/2020), https://www.health.state.mn.us/news/pressrel/2020/covid19030620.html .
35 Brunkhorst v. City of Oak Park Heights, 914 F.3d 1177, 1180 (8th Cir. 2019).
36 Id.
37 Robert Iafolla, Work at Home Gets Skeptical Eye From Courts as Disability Issue, Bloomberg Law (2/21/2019), https://news.bloomberglaw.com/daily-labor-report/work-at-home-gets-skeptical-eye-from-courts-as-disability-issue.
38 Bilinsky v. American Airlines, Inc., 928 F.3d 565 (7th Cir. 2019).
39 Birkinshaw, et. al., Research: Knowledge Workers Are More Productive from Home, Harvard Business Review (8/31/2020), https://hbr.org/2020/08/research-knowledge-workers-are-more-productive-from-home .
40 Randy Furst, Citing COVID Concerns, Minnesota courts suspend trials and in-person hearings for two months, StarTribune (11/19/2020), https://www.startribune.com/citing-covid-concerns-minnesota-courts-suspend-trials-and-in-person-hearings-for-two-months/573129811/ .
41 A cashier, for example, likely cannot request teleworking as a reasonable accommodation given the job’s responsibilities.
42 What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. EEOC (last visited 11/12/2021), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws .
43 Id.
44 Find ADA FAQs at https://adata.org/top-ada-frequently-asked-questions, and MHRA accommodation reminders can be found at https://mn.gov/mdhr/employers/reasonable-accommodations/ .
45 Find EEOC Technical Assistance Questions and Answers at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws


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