By Patrick O’Brien, JD, Legal Coordinator, American Med Spa Association (AmSpa)

The Equal Employment Opportunity Commission (EEOC) is charged with enforcing federal protections on workplace discrimination. In addition to complaints based on race, color, national origin, religion and sex, the EEOC also investigates discrimination based on disability, as provided in the Americans with Disabilities Act of 1990 (ADA). Many people are familiar with the ADA due to the ubiquity of the required “public accommodations,” such as wheelchair ramps, textured surfaces at crosswalks and braille signs. However, the ADA also prohibits discrimination based on disability in the workplace by employers with 15 or more employees. Here is a look at three recent enforcement actions by the EEOC. All three are pandemic- and COVID-19-related; however, the underlying concepts apply to disability discrimination universally.

The first case involves a pharmacy and dispute over masks. The incident occurred at the start of the pandemic in March 2020. The employee—a pharmacy technician who suffers from asthma—had requested to wear a mask while working to limit their exposure to possible infection. Management denied the request on several occasions, going so far as to threaten termination if the employee wore a mask. The company’s stated justification was that it could create the impression that their employees were working while sick and hurt business. For context, this was prior to the Center for Disease Control and Prevention’s (CDC) recommendation on public mask wearing. However, the larger concept is that employers have a duty to discuss options and allow “reasonable accommodations” to their employee’s disabilities unless it would prohibit the employee from performing essential job functions or create an undue burden for the business. Would allowing a mask have posed an undue burden or prevented the employee from fulfilling their job? This case is ongoing, so we do not yet know the outcome.

In the second case, two baristas with underlying conditions requested to have minimal customer contact early in the pandemic. The coffee shop told both employees that they could not return to work until the COVID-19 vaccine was available. Since the case was filed, the coffee shop ended up settling with the EEOC. The underlying issue here is that the employer needs to discuss the reasonable accommodation, but this discussion needs to be two-way and it must try to find an acceptable accommodation that still allows the employee to fulfill their essential functions and that isn’t unduly burdensome to the company. It does not appear that this occurred in this case. Obviously, a “barista” is going to require some contact with customers just by the nature of the job, so “minimizing contact” may not have been possible without being unduly burdensome or prohibiting the employee from performing their essential functions. But it is the responsibility of the employer to work through the process to try to find a solution.

The third case involves a facility that moved to remote work from March to June of 2020. After this, the company reopened the site and required the employees to work in person. The employee in this case requested an accommodation to work from home two days per week and to be permitted to take several breaks while on site. It appears that several other employees were permitted to work from home, but this employee’s requests were denied. This case is also ongoing, so the outcome is unknown. However, it may be difficult for the company to maintain that this accommodation would have prevented the employee from performing their essential functions or that it would have been unduly burdensome to the company, especially since others in similar circumstances appeared to be allowed to do so.

To summarize the concepts from these three cases, disabilities come in all forms—some of which are visible and obvious, and others that are not. When asked to make a reasonable accommodation to an employee’s disability, employers have a duty to engage in an interactive discussion to identify and arrive at an acceptable solution. Requests can only be denied on very narrow grounds. Alternatives must be explored if the initial suggestion will not work. Simply denying a request and moving on will not work. The EEOC provides several resources regarding an employer’s responsibilities with regard to the ADA. There are many intertwined rules and requirements—not just with the ADA, but also with labor and employment law in general. It isn’t possible to hold it all in your mind every time you are asked to make a decision about the workplace. Instead, it is important to have a basic understanding of the landscape and know when you need to take a pause and consult your resources and labor counsel before making a decision.

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