The Equal Employment Opportunity Commission (EEOC) recently updated its COVID-19 guidance to provide employers with additional insight on how to properly engage in the Americans with Disabilities Act’s (ADA) interactive process.

Engaging in the interactive process

In parts of the country, governors are beginning to talk about reopening their states for business. When this occurs, employers are likely to experience an influx in disability accommodation requests.

The EEOC guidance makes clear that, even during the pandemic, an employer faced with an employee’s disability accommodation request may ask questions and seek medical documentation to determine whether the employee is in fact a person with a disability as defined by the ADA, provided that the disability is not otherwise apparent. The ADA defines a disability as physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment.

Additionally, employers may still engage in the interactive process to determine why an accommodation is needed if the information is not obvious or already known to the employer. This means that the employer may ask the employee or request medical documentation to answer questions like:

  1. how does the disability create a limitation;
  2. how the requested accommodation will effectively address the limitation;
  3. whether another form of accommodation could effectively address the issue; and
  4. how a proposed accommodation will enable the employee to continue performing the essential functions of position.

Given our ever-evolving understanding of COVID-19 and the number of other employment issues employers are currently facing, many employers may want to shorten the interactive process. The EEOC guidance allows employers to streamline the interactive process during the pandemic. It empowers employers to grant requested accommodations on a trial basis by placing temporary end dates on an accommodation during the pandemic or by stating that the accommodation is offered for an interim period.

Undue hardship

Of course, employers are not required to provide a requested accommodation if doing so would pose an undue hardship to the company. An “undue hardship” means “significant difficulty or expense.” The EEOC notes that accommodations that might not have posed an undue hardship before the pandemic may now pose an undue hardship. Specifically, an employer may find it significantly difficult to provide a temporary assignment, remove marginal functions, or to hire temporary workers for specialized positions.

Additionally, employers may be more cost-constrained and have a smaller operating budget. To that end, employers faced with an accommodation request may weigh such factors as:

  1. loss of some or all of the employer’s income stream because of the pandemic;
  2. the amount of discretionary funds available at the time of the request; and
  3. whether there is an expected date that the current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).

Limited budgets do not mean, however, that an employer can simply deny any request that presents a financial cost. Instead, the employer must weigh the cost of the accommodation against its current budget while taking into account constraints created by the pandemic.

When essential duties can only be performed at work

Employers may also wonder what they should do if they receive an accommodation request from an employee who has a greater risk for COVID-19 but whose essential duties can only be performed at the workplace. The EEOC encourages these employers to consider low-cost solutions such as designating one-way aisles; using plexiglass, tables or other barriers to ensure minimum distances between customers and coworkers whenever feasible; temporary job restructuring of marginal job duties; temporary transfers to a different position; or modifying a work schedule or shift assignment.


Employers may want to spend the next few weeks, before a business reopening, planning for responding to requests for accommodation when the return to work begins. The EEOC even encourages employers to reach out before the return date and ask employees to provide notice if they believe they will need an accommodation when work resumes. In this way, employers can jumpstart the interactive process to allow for a more fluid transition. In weighing specific requests to determine if a request poses an undue hardship, employers are encouraged to seek out legal counsel.

Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.