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Telework During the COVID-19 Crisis – Can Employees with Disabilities Keep Working from Home after Businesses Reopen?

Laura Wilson

The Equal Employment Opportunity Commission (EEOC) is the federal agency in charge of enforcing workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA).  The law requires employers to provide reasonable accommodation for disabled employees to do their jobs.  Recent guidance from the EEOC suggests that employers who allowed employees to work from home to navigate stay at home orders during the pandemic may not be able to reject out of hand requests from their disabled workers to work from home even after the pandemic is over.

Under the ADA, if a reasonable accommodation is needed and requested by a disabled worker, the employer must provide it unless it would pose an “undue hardship,” meaning significant difficulty or expense.  An employer can choose among effective accommodations and does not have to provide the exact accommodation requested by the worker. 

For years many employees who requested to work from home as a reasonable accommodation under the ADA faced stark opposition from employers who claimed that allowing employees to work from home would decrease productivity or otherwise cause an undue financial or other burden on the business.  So employees’ requests to work from home were often denied.  

Over the past six months, many employers have allowed all or most of their employees, not just those workers with a disability covered by the ADA, to “telework” or work from home during the COVID-19 pandemic.  These remote work arrangements helped many business stay open throughout the stay at home orders issued in many states this spring and summer.  And, “teleworking” has been considered a reasonable accommodation during the pandemic for many disabled workers, especially those who are at higher risk of contracting COVID-19.  See the EEOC’s Pandemic Preparedness in the Workplace and ADA.   

The question now is whether the decision to send workers home or let them telework means that employers are required to provide similar accommodations for employees with disabilities in the future? The answer, according to the EEOC’s most recent guidance is, maybe. A disabled employee who was working from home because their employer shut down or assigned employees to work from home during the COVID pandemic is not automatically entitled to keep working from home as an accommodation once the employer recalls its workers to the office or worksite.  The EEOC guidance says that: 

If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

But the guidance also notes that the need for telework is a fact-specific determination. So assuming all the requirements for telework as a reasonable accommodation are satisfied, the temporary telework experience brought on by the COVID pandemic could be used to show that an employee’s renewed request to work from home once the workplace reopens is reasonable and the employee can perform the job without an undue hardship to the company. In other words, the period of allowing telework because of the COVID-19 pandemic could serve as a trial period that establishes whether or not an employee with a disability can satisfactorily perform all essential functions of the job while working remotely.  According to the EEOC, the employer should consider any new requests for telework in light of this information. As with all accommodation requests, the employer is required to engage in a flexible, cooperative interactive process with its employees to determine what reasonable accommodation can be made under the ADA.  After the COVID pandemic and the reality that workers can effectively and efficiently perform many jobs working from home or other remote locations, employers should understand that telework is a reasonable accommodation.

For the most recent EEOC guidance see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

 

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