Telework as a Reasonable Accommodation
Of the many things the COVID-19 pandemic has drastically changed in our lives, employment is certainly at the top of the list. Last spring, millions of people were forced to leave the office and enter the virtual workplace. Even though vaccine distribution is underway and there is hope for an end to the pandemic, the virtual workplace is here to stay for many employees. Many employers have realized the benefits of having remote workers, and not only as a safety measure in times of a public health emergency. Employers may be able to reduce the need for expensive physical office space, and many workers are able to improve productivity when they are not spending time and energy commuting. Telework will likely become a more common practice than it used to be.
Some in the disability community wonder if the pandemic has permanently changed the way employers handle requests for telework as reasonable accommodations. Long before 2020, some believed employers were resistant to requests for telework, and that pressure to work in a physical office space was keeping people with disabilities from holding jobs. Now, they argue, the pandemic has proven that telework is feasible, and there is no longer any good reason to deny requests for this accommodation.
The U.S. Equal Employment Opportunity Commission (EEOC) recently stated that the regulations governing ADA accommodations have not changed in response to the pandemic and widespread telework. Employees should not assume that a request to work remotely will now be granted automatically. Employers can still deny requests to telework if alternative accommodations will effectively meet disability-related needs.
However, arguments for and against the feasibility of working remotely have undoubtedly been affected by the events of 2020. Many employers have discovered that business can go on even when the entire staff is teleworking. Employees with disabilities may want to request the continuation of telework when the employer calls the staff back to the office, and the fact that virtual work was successfully accomplished for many months could be strong evidence in favor of the request.
But employees should also be aware that the successful implementation of telework during the past year cannot simply be generalized to how work will be done in the future. When physical workplaces were closed, many employers adjusted or even suspended some job tasks – including, in some cases, essential job duties – but this was a unique situation. An employer is never required to remove essential functions as an accommodation for a worker with a disability. For example, if meeting in person with clients is an essential job function that was suspended because of the pandemic, an employer can require that it resume once it is again safe to meet in person.
Employers and employees should understand that requests for telework as reasonable accommodations under the ADA are handled the same way as requests for other types of accommodations. In general, requests for ADA accommodations are initiated by an employee with a disability-related need. The employee should let the employer know about this need and be prepared to provide documentation from a healthcare professional if either the disability or the accommodation need is not obvious.
Employers should be prepared to engage employees in a flexible, interactive process as soon as they become aware of an ADA accommodation need. If the request involves working remotely, the employer should first consider any existing policies, practices, or procedures that dictate how telework is handled. If employers already permit employees to work remotely for reasons other than disability, then a disability-related request should not be handled any differently. There is no reason to request medical documentation to verify a disability, for example, if other employees are routinely allowed to telework.
If telework is not generally allowed, then the employer can proceed with the ADA accommodation process. Employers don’t have to automatically grant an accommodation request, but do have to consider the feasibility and effectiveness of telework. If all of the essential functions of a job can be performed remotely, no alternative accommodations would be effective in meeting the disability-related need, and implementing telework does not create undue hardship for the employer, then the request should be granted.
It is important to remember that telework doesn’t necessarily need to be approached as an all-or-nothing proposition. Full-time telework may not be needed or appropriate in all cases. Like any accommodation, telework should be considered in light of both the disability-related needs of the employee, and the essential functions of the job. Some jobs can be accomplished entirely outside the workplace, and some can be accomplished through a combination of telework and in-person attendance. For example, an employee might only need to telework one day per week in order to manage medical treatments. If this employee requests full-time telework, the employer does not have to grant the request because it doesn’t match the disability-related need.
For more information on telework, check out the EEOC’s guidance on Work at Home/Telework as a Reasonable Accommodation and What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.