Changing workplace accommodation requests and litigation trends

January 18, 2023

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By Adam Morell, JD – AVP, product compliance and Audrey Bryan – director, operations

New state leave laws, changing employee expectations and long COVID are driving change when it comes to accommodations.

As workers increasingly expect their employers to provide safety nets in supporting their physical and mental health, states are creating (or modifying) laws to keep up in protecting the rights of workers. And, what remains of the COVID-19 pandemic only exacerbates these trends due to the grim impacts it has had on employees’ health.

In November 2022, Disability Management Employers Coalition (DMEC) presented a webinar providing guidance on exactly what’s changing, what’s on the horizon, and what these changes mean for employers, employees and the future of disability management.

Paid leave and extra protections on the rise

The future of U.S. workplaces looks like one where paid leave is commonplace. Consider how much has changed in this single decade. In 2016, only six U.S. states/territories had any worksites that required paid family or medical leave. But since then, many states have been following suit – by 2026, there will be 15 states. The first two states to add additional protections will be Oregon (in September 2023) and Colorado (in January 2024). And, in a trend that we are seeing more often, both states will expand the protections beyond FMLA — specifically, employees in both states will be able to address the immediate safety needs and impact of domestic violence and/or sexual assault. In addition, the definitions of employee “family member” in Oregon and Colorado will apply to some people who aren’t related by blood.

Mental health support

A recent survey indicates that employees increasingly value and expect employers to provide programs, leave and other forms of mental health support. In fact, 66% of employees believe that employers have an obligation to help employees manage their mental health. And, while many employers have stepped up to meet this challenge, there is a knowledge gap; 41% of employees think their employer doesn’t have mental health programs. Employers can support their employees’ mental health by fostering a culture that respects time off, offering flexible work hours, and allowing employees to work remotely.

An employer’s decision to address employee trends and expectations will likely impact talent recruitment, as more than 80% of workers agree (including 30% who strongly agree) that how employers support mental health will be an determining factor when looking for future work. And it seems employers are indeed listening: 71% of workers believe employers are more concerned about their employees’ mental health than they were in the past. Employers must examine and reset working practices as employee expectations have changed.

The impact of COVID-19

The COVID-19 pandemic continues to affect the need for mental health support. At the height of the pandemic, the prevalence of depression and PTSD in the U.S. was 24% and 15% respectively. But for those infected by COVID-19, this increased exponentially to 42% for depression and 96% for symptoms consistent with PTSD.

Then there’s long COVID. People with long COVID continue to experience conditions that last weeks, months or even years after infection. Long COVID conditions have a wide range of symptoms – most common of which are brain fog, post-exertional malaise (PEM) and fatigue. This affects a reported 22 million people, or 6.9% of the adult U.S. population, and incurs a financial burden of nearly $400 billion (although the seroprevalence model suggests these numbers are much higher). In many cases, long COVID significantly impacts a patient’s quality of life and could necessitate employee accommodations.

Long COVID and accommodation requests

Accommodation requests related to long COVID should be reviewed individually based on the totality of circumstances, and all steps of the interactive process should be documented properly. In other words, the same way other accommodations requests should be reviewed.

In determining if accommodations are appropriate, ask the following questions:

  1. If an employee has a disability, is there a reasonable accommodation that will enable them to perform the essential functions of their job?
  2. Would providing the accommodation impose an undue hardship on the employer?

And, based upon the limitations an employee experiences due to long COVID, there are a variety of potential modifications to keep the employee at work. To name a few, decreased stamina or fatigue could call for periodic rest breaks, a modified schedule or workplace, an aide/assistant or ergonomic and pneumatic tool access.

Those experiencing memory loss or brain fog could be provided additional training time, electronic organizers, visual schedulers or job coaches. And for a person with light sensitivity, alternative lighting, LED or gel light filters, personal visors or switching to telework could all be appropriate potential modifications.

Litigation and accommodation request predictions

Moving forward in 2023, we predict more states will announce upcoming paid leave laws, and that there will be an increase in leave, disability and accommodation-related litigation. We also anticipate that disability discrimination will be alleged more often than any other type of discrimination – continuing a trend that began in 2019. Finally, long COVID claims will inevitably continue to rise, and in the next few years will likely surpass things like musculoskeletal and mental health-related accommodation requests. The more we look to the future, the more we will be ready for what comes next.

> Learn more — View the webinar on this and other related topics as part of the DMEC Resources, Tools and Tactics series.

Tags: Accomodation, coronavirus, COVID-19, Disability, Disability and leave, DMEC, FMLA, Helping people, Leave, leave law, leave of absence, litigation, long COVID, Mental health, mental health-related absence, Mental wellness, People, Workers, workplace, Workplace health