Last week, we posted Part 1 of this blog series. Therein, you will find a discussion of employment discrimination laws that are potentially triggered when an employee requests to telework for health, safety, or disability reasons. In Part 2, we examine how the state of businesses during the COVID-19 pandemic impacts the discussion of whether telework is a reasonable accommodation.
For many years, employers have asserted that regular attendance at the job site is an essential job function, and employers have often been successful with this argument and, consequently, avoided providing telework as a reasonable accommodation. See, e.g., EEOC v. Ford Motor Co., 782 F.3d 753, 775 (6th Cir. 2015) (collecting cases). Prior guidance from the Equal Employment Opportunity Commission (“EEOC”) stated that considerations as to whether telework is a reasonable accommodation “include whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients or customers is necessary; and whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace.” Work at Home/Telework as a Reasonable Accommodation, EEOC Guidance (Feb. 3, 2003). Because of the spread of COVID-19, many businesses have now operated on a telework model and done so successfully. In fact, the Brookings Institute suggests up to half of American workers were working from home in April of this year. Telecommuting Will Likely Continue Long After the Pandemic, Brookings Institute (Apr. 6, 2020). Now that teleworking has been widely, and often effectively, used, the conversation around teleworking as a reasonable accommodation has evolved.
In September, the EEOC offered its guidance on the subject. What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC (Sept. 8, 2020). Therein, the EEOC recognized, “There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19.” Id. § D.1. An employer, however, is not automatically required to grant telework as a reasonable accommodation simply because the employee was allowed to telework for the purpose of slowing the spread of COVID-19. In sum, “[i]f there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation.” Id. § D.15. If the employee has such a limitation and teleworking is a reasonable accommodation, the employer must show telework imposes an undue hardship.
The fact that an employer allowed an employee to telework does not mean it did not impose an undue hardship. Many employers temporarily excused the essential job duty of regular attendance because of the pandemic; that decision to ensure the safety of its workers, however, “does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.” Id. If an employee requests telework as a reasonable accommodation, the employer must engage with the employee to determine whether the employee has a disability, the accommodation allows the employee to perform the essential functions of his or her job, and the accommodation does not impose an undue hardship. It is important to note that if an employee teleworked during the pandemic, that period of teleworking may operate as a “trial period” showing whether the employee with a disability satisfactorily performed all essential functions of the position. Id. § D.16.
As COVID-19 restrictions lift and businesses begin to return to normal, it is likely many employees will request to continue teleworking. To avoid claims of disability discrimination, employers must remain apprised of the evolving discussion of telework as a reasonable accommodation. Hamil Little is experienced in employment matters . If you would like to discuss your options or have questions about this post, contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, firstname.lastname@example.org. You may also learn more about our law firm by visiting www.hamillittle.com.
** Disclaimer: Thoughts shared here do not constitute legal advice. Please consult with an attorney to discuss your legal issue.