Managing the ADA & FMLA During a Pandemic

Managing the ADA and FMLA During a Pandemic

An Overview of Both Laws

Kelley Kalchthaler & Karla Schultz Associate Attorneys

Human resources administrators are familiar with both the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA). However, applying those laws during the COVID-19 pandemic can prove complicated. This article will provide an overview of both laws and will help district officials apply those laws, when responding to employees who are requesting accommodations and healthrelated leave, whether for coronavirusrelated reasons or for traditional reasons.

Under the ADA, like all employers, school districts must provide reasonable accommodations that will enable people with disabilities to enjoy equal employment opportunities. When an employee requests a reasonable accommodation, it is important that the district have enough information to understand the disability-related limitation necessitating the requested accommodation.

To that end, if an employee requests an accommodation for a medical condition that is not obvious or already known to the district, you can ask for more information or request medical documentation in order to determine whether the employee has a “disability” as defined by the ADA and, if so, what accommodations would allow the employee to effectively perform the essential functions of his or her job.

If you have an employee who was receiving a reasonable accommodation prior to the pandemic, it would be a good idea to discuss with the employee whether the accommodation is still effective, and if not, whether an additional or altered accommodation is needed due to the same or a different disability. Of course, absent an undue hardship, the employee may be entitled to that additional or altered accommodation if the need for it is obvious or supported by updated medical documentation.

Some common coronavirus-related accommodations are also arising, and these may include requests to work from home due to the employee’s own medical condition (one about which the district may not have been previously aware), the fact that the employee falls into a “highrisk” category, or due to the employee having a high-risk family member at home.

EMPLOYEE’S MEDICAL CONDITION OR DISABILITY

First, when an employee requests an accommodation due to their own medical condition, including a request to work remotely, the district can request medical documentation showing the employee has a disability and therefore needs the requested accommodation in order to perform the essential functions of his or her job. Of course, the documentation should only be requested when the disability and need for accommodation are not obvious or already known to the district. Sufficient medical documentation generally describes the nature and severity of the impairment, the activity or activities that are limited by the impairment, the extent to which the impairment limits the employee’s ability to perform the activity or activities, why the requested reasonable accommodation is needed in order to perform the employee’s job, and how long the impairment is expected to last. It is helpful to have the documentation also describe all accommodations that would be effective. For example, an employee may prefer to work at home, but there may be other accommodations that would allow the employee to perform his or her job on-site too. If there is a disability-related limitation but the district can effectively address the need with another form of reasonable accommodation at the workplace, including temporary reassignment, the district can choose that alternative instead of teleworking. Unpaid leave can also be offered to an employee with a disability as a reasonable accommodation under the ADA if it does not create an undue hardship for the District. That is where federal leave under the Family Medical Leave Act (FMLA) can come in.

As human resources administrators know, FMLA leave is available to an employee who has a serious medical condition that makes the employee unable to perform his or her job. That would include an employee who cannot work on-site (or remotely) for reasons related to COVID-19 and the employee’s disability. Of course, an eligible employee who is sick with COVID-19 and cannot work would also be entitled to any available FMLA.

HIGH-RISK EMPLOYEES

If an employee states that, due to an underlying health condition, he or she is at increased risk for becoming severely ill should the employee contract COVID-19 and wishes to work from home, that is a request for an accommodation and should be treated like all other requests for reasonable accommodations under the ADA. This will mean asking questions to determine whether there is a condition that constitutes a disability, discussing with the employee how the requested accommodation would allow him or her to do the job, exploring alternative accommodations that may effectively meet the employee’s needs, and requesting medical documentation if needed. If there is no disability-related limitation that requires working from home, then the district does not have to provide telework as an accommodation.

The EEOC has also warned employers against excluding an employee only because the employee is of a particular age or has a disability that the CDC identifies as potentially placing the employee at “higher risk for severe illness” if he or she gets COVID-19. To do that would constitute discrimination based on age or disability.

The Texas Education Agency (TEA) has continued to update its Public Health Guidance, which deals with students and staff. TEA’s most recent guidance (dated December 10, 2020) reminds us that employees of school systems, like employees of any organization, must continue to meet the work expectations set by their employers, subject to any applicable employment contract terms or legal requirements. TEA likewise tracks federal law and guidance in urging school systems to work with teachers and other staff to ensure the safety of students, teachers, and staff. This could include allowing those staff, including teachers, who may fulfill their work duties remotely to do so. It could include modification of schedules to ensure, where feasible, that staff members, including teachers, interact with smaller and/or more consistent cohorts of individuals to further mitigate risk.

HIGH-RISK FAMILY MEMBERS

The EEOC has also affirmed that under the ADA, an employee is not entitled to an accommodation, including telework, in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition. But while the ADA does not require districts to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom the employee is associated, the Public Education Department has asked districts to be creative and examine whether some other form of alternate work might be available for these employees too.

Leave taken by an employee for the purpose of avoiding exposure to COVID-19, whether for the employee or a family member, is not protected under the FMLA. But, if the employee cares for a spouse, child, or parent who has a serious health condition, including COVID-19, the employee might be eligible for FMLA.

FFCRA-TYPE LEAVE-RISK

As district administrators know, last year teachers and staff who were in high-risk categories were entitled to paid leave under the federal Families First Coronavirus Response Act (FFCRA) for Emergency Paid Sick Leave (EPSL) or Emergency FMLA leave (EFMLA). However, those FFCRA leave entitlements expired on December 31, 2020 and the new federal legislation no longer requires an employer to continue to offer FFCRA leave to employees. The new federal law gives employers the option of offering employees any unused FFCRA leave through March 31, 2021. As was true in 2020, governmental employers such as public schools do not receive tax credits for this form of leave so the expense is borne by the district.

Of course, your district still has the option to offer additional leave or continue to offer FFCRA-type leave if your school board approves it. Keep in mind that your district may not want to offer leave to be used for all the same reasons that were previously required under the FFCRA. For example, a district might wish to offer leave if the employee cannot work remotely but has to quarantine due to COVID-19 exposure or symptoms, but not offer leave for childcare purposes or to care for a family member or other individual. Check to see if your district has passed a resolution offering any FFCRA-type leave. If it has not but you are interested in providing some type of leave, we recommend you talk to your legal counsel to work on a resolution for the school board to consider.

CONCLUSION

While FFCRA is no longer mandatory, some other form of COVID-19-related leave could become available by future Congressional action or if districts chooses to offer some form of new leave by school board action. The end of mandatory FFCRA leave means that understanding the ADA and FMLA will be especially important for the remainder of the 20202021 school year.

As always, call your district’s legal counsel for assistance in implementing these and related laws.

Kelley Kalchthaler and Karla Schultz are attorneys and shareholders with the law firm of Walsh Gallegos Treviño Russo & Kyle P.C., which represents public school districts throughout the state. The information in this article is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney.