Brian Ashe Quoted in Federal Human Resources Week

An article in the November 13 issue of Federal Human Resources Week [“Pandemic flu policy should cover disability accommodations”] features advice from Brian for putting a policy in place to accommodate employees with disabilities in the event of an avian flu pandemic.
A policy can help the agency comply with the Rehabilitation Act by defining who is disabled and identifying what accommodations are reasonable in a health crisis, said employment law specialist Brian T. Ashe of Seyfarth Shaw LLP in San Francisco. In a flu outbreak, the definition of disability and reasonable accommodations will likely change from the accepted standard in normal work conditions, Ashe said. A policy decision that an agency will have to make should a pandemic occur is who is protected by Rehabilitation Act and entitled to accommodations, he said.

There are 3 situations for an agency to consider:

One is whether the flu affects an employee to such a degree that it becomes a chronic condition that requires treatment over a long period and eventually the employee requests accommodations. Second is whether an employee because of a preexisting condition, such as a respiratory ailment or HIV, and who normally does not require an accommodation, requests an accommodation because his medical condition is exacerbated by the flu. The third is whether an agency considers an employee who is laid up for a long time with the flu as disabled. In any of those three situations, an agency may want to err on the side of caution and enter into the interactive process and consider reasonably accommodating the employee to avoid a disability discrimination complaint later, Ashe said.

Employers also may want to consider extended leaves of absences for vulnerable employees, Ashe said. The Equal Employment Opportunity Commission, in some cases, recognizes that a leave of absence is a form of accommodation unless an agency can show undue hardship.