By now, many employees have been working from home since March 2020 as a result of the COVID-19 pandemic. With no signs of slowing and the rollout of a vaccine to the general public not likely to occur until well into 2021, teleworking looks like it’s here to stay for the foreseeable future.
Some employers, however, may be eager to see their offices bustling with productive employees, especially once the pandemic subsides. Confounding the issue is that some employees, having worked effectively from their homes, may seek telework as a disability accommodation.
To assess the claim, you must determine whether teleworking would be a reasonable accommodation under the Americans with Disabilities Act (ADA).
ADA Disability and Reasonable Accommodations
Under the ADA, an individual is generally deemed to have a disability if he suffers from a “physical or mental impairment that substantially limits one or more major life activities.” The ADA further provides that “working” constitutes a major life activity for the purpose of determining the existence of a disability. Notably, the definition of “disability” is to be construed broadly and includes conditions that are episodic in nature or are in remission.
Title I of the ADA contains guidelines for employers dealing with employees’ disabilities in a work setting. That chapter of the Act is applicable to “employers” that employ 15 or more individuals for each workday in 20 or more workweeks of a given year. The rules established under Title I state that employers must provide reasonable accommodations to a disabled employee as long as they don’t create an undue hardship for the business operations.
The ADA defines a reasonable accommodation as “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” Thus, permitting an employee to telework may be considered a reasonable accommodation when a qualified employee cannot successfully perform her essential functions unless she is working remotely.
An employer isn’t required to provide a reasonable accommodation, however, if it would pose an undue hardship, meaning that doing so would be significantly difficult or expensive. To determine the validity of such a request and whether it would constitute an undue hardship, you and the employee must engage in an “interactive process” during which you analyze the job requirements, identify the restraints implicated by the disability, and determine any suitable accommodations.
7th Circuit Precedent
Historically, employers haven’t been required to permit employees to work from home as a form of reasonably accommodating a disability. In 1995, the U.S. 7th Circuit Court of Appeals—which covers Illinois, Indiana, and Wisconsin—addressed the issue in Vande Zande v. State of Wis. Dept. of Admin. In that case, a paraplegic employee suffered from pressure ulcers that required her to stay home for several weeks at a time.
Although the employer took various actions and made alterations at its premises to accommodate the disability, the employee requested the ability to work from home on a full-time basis. The employer refused, stating that allowing such an arrangement would produce only between 15 and 20 hours of work per week.
The court sided with the employer, generally on the basis that most jobs require some form of teamwork and supervision and allowing a disabled employee to work from home as a form of accommodating a disability would jeopardize her productivity and thus cause an undue hardship to the employer.
In our current pandemic environment, however, employers are not only encouraging employees to work from home in efforts to curtail the spread of the coronavirus, but some are also temporarily required to do so under some form of authoritative order or regulation.
In addition, technological advancements over the past 25 years give some employers the ability to track employees’ performance and productivity remotely, even when they’re not present on the employer’s premises. As a result, the discussion about teleworking as a form of reasonable accommodation is resurfacing.
Foreseeing such issues, the Equal Employment Opportunity Commission (EEOC) recently issued guidance for employers to address such claims and telework requests. Specifically, the agency said:
- If an employer provided telework arrangements during the COVID-19 pandemic, it isn’t automatically required to permit remote work as a reasonable accommodation for employees with disabilities. Rather, it’s required to engage in the interactive process.
- If the employee requesting telework experiences a disability-related limitation at work that can effectively be addressed with other reasonable accommodations on the employer’s site, then the remote-work arrangement wouldn’t be required.
An example may include providing an immune-compromised employee with a workstation or office separate from other workers.
The EEOC also addressed whether an employer that previously denied a disabled employee’s request for a telework accommodation before the pandemic—based on concerns she would be unable to perform her essential functions from home—would be required to grant the accommodation after employees begin to return to the work premises. In this instance, if the employee was actually able to perform her job from home during the pandemic, it undermines or dispels the employer’s concerns about remote job performance.
The EEOC again stressed, however, that an employer wouldn’t automatically be required to grant the request postpandemic. As with any disability-related request, the interactive process should play out.
Although the COVID-19 outbreak has caused many people to telework, the EEOC has indicated disabled employees aren’t automatically permitted to work from home after the pandemic subsides. Rather, the two sides must engage in the interactive process to determine whether:
- Teleworking would be a reasonable accommodation under the circumstances;
- The employee would be able to perform his essential functions from home;
- It would be an undue hardship on the employer; and
- Any alternative reasonable accommodations exist that would permit him to perform his job on the employer’s site.
This article doesn’t address any state’s disability-related employment laws, however, and you are well advised to consult with a qualified attorney to determine whether there are any additional requirements to consider in addressing an employee’s disability-related telework request.
Conor Leedom is an attorney with Axley Brynelson, LLP, in Waukesha, Wisconsin. He can be reached at firstname.lastname@example.org.