Not immune from change

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

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).

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

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.

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.

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.