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.
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