Pub. 11 2020 Issue 3

Pub. 11 2020 I Issue 3 Fall 29 West Virginia Banker Julie A. Moore is an experienced and highly skilled labor and employment attorney whose practice spans the employment law spectrum. A partner in the Morgantown, West Virginia office of regional law firm Bowles Rice, she can be reached at 304-285-2524 or jamoore@bowlesrice.com . health that cannot be eliminated or reduced by reasonable accommodation, which involves an individualized assessment based upon objective facts. Second, if an employee requests an accommodation that is premised upon a representation that he has one of the medi- cal conditions recognized by the CDC as placing him at high- er risk, employers should know that they still have the ability to seek information to evaluate the request. In other words, employers are permitted to ask questions of the employee and may require medical documentation from the employee’s physician to evaluate whether he has a disability. Similarly, employers are still permitted to engage in the interactive process to evaluate the employee’s accommoda- tion request. The EEOC’s guidance instructs that, as always, an employer is allowed to ask questions of an employee about her disability-related limitations and the nature of her accommodation needs. Further, employers may require that supporting medical documentation be provided to assist with determining whether an employee’s disability necessi- tates an accommodation and what types of accommodation may be needed. However, the EEOC implores employers to be mindful that employees may face difficulty obtaining medical documentation from their health care provider in a timely fashion due to challenges caused by the virus and the strain it has placed on the health care system. Accordingly, the EEOC encourages employers to consider foregoing, modifying or shortening the interactive process as appro- priate or proceeding with implementing accommodations on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. When it comes to granting accommodations, again, many of the familiar, basic rules still apply. It remains true that em- ployers are not required to eliminate essential functions as an accommodation. Elimination of essential job functions is not regarded as being reasonable, which is the applicable stand- ard. Still, some employers are voluntarily electing to tempo- rarily relieve employees of essential functions to accommo- date those who are at heightened risk for COVID-19. Should an employer choose to temporarily remove an employee’s essential functions during the pandemic, it is recommended that this fact be clearly documented within any accommo- dation approval letter issued to the employee. Doing so will help to defend against subsequent disputes about whether the removed function is, indeed, regarded by the employer as being essential, as opposed to merely marginal. Likewise, it remains true that employers are not necessarily required to grant employees their desired accommodation of choice if other effective accommodations exist. Generally, effectiveness, and not the employee’s personal preference, is the relevant consideration in selecting a reasonable accom- modation. In the context of COVID-19, application of this prin- ciple has arisen, perhaps, most frequently, in connection with requests to telework. Generally, employees are not required to permit telework if other effective accommodations exist within the workplace, and so long as the approval of telework is not discriminatorily applied. Overall, the EEOC encourages employers to be flexible and think outside the box when it comes to granting accom- modations related to COVID-19, and to consider approving accommodations on a temporary basis, anticipating that the pandemic will someday come to an end, and the world will return to the normal state we previously knew. In sum, the importance of properly handling accommodation requests related to COVID-19 cannot be overstated. Under federal and state law, employees may file a claim for failure to accommodate, which can be challenging and costly to de- fend. Accordingly, employers are encouraged to review their accommodation protocol to ensure that employees know how to make requests; that requests do not fall upon deaf ears or slip through the cracks; that requests are timely and properly vetted by human resources; and that appropriate documentation is generated along the way. 