Question: Our employee has filed an Americans with Disabilities Act (ADA) request with her psychiatrist to work from home permanently. Do we have to accommodate her? She already has performance issues, and no one else on her team is a permanent remote employee.
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You must provide a reasonable accommodation to an employee with a disability only if it allows her to perform her “essential job functions” and doesn’t pose an undue hardship to the company. “Essential job functions” mean the “fundamental” duties of the position the individual with a disability holds or is seeking. An “undue hardship” exists if the accommodation causes you “significant difficulty or expense.”
If the employee isn’t able to perform her essential functions or your business suffers an undue hardship, the requested accommodation isn’t reasonable, and you aren’t obligated to provide it. It’s important to note, however, an accommodation that would have posed an undue hardship before the COVID-19 outbreak may not pose one in the postpandemic workplace. For instance, you may not have had the technological capabilities to let her work from home prepandemic, but now she can reasonably perform her essential job functions remotely.
Conversely, however, you may have temporarily waived her performance of one or more essential job functions during the pandemic to let her work remotely until it was safe to return. You have no obligation to permanently waive her performance of the function or refrain from restoring it once it’s safe to return to work.
“The period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely,” the Equal Employment Opportunity Commission (EEOC) recently stated, “and the employer should consider any new request in light of this information.” In essence, the burden is on you to show continuing to let her work remotely after the pandemic impairs her ability to perform the essential job functions or imposes an undue hardship on your business.
The EEOC has urged employers and employees to engage in a flexible, cooperative interactive process to determine whether a request to telework permanently is reasonable. Typically, the process should be completed independent of any performance-related issues the employee may have, unless they are related to her disability. For instance, if a disabled employee’s inability to perform her essential functions can be cured by allowing her to telework permanently, it may be considered a reasonable accommodation provided it doesn’t impose undue hardship.
Ultimately, deciding whether to grant an employee’s request to telework permanently after the pandemic is a fact-specific determination. Although you have no obligation to refrain from restoring all of your employee’s essential duties under the previous work arrangement, you also must consider if she can successfully perform them remotely.
In addition, the Wisconsin Fair Employment Act (WFEA) mirrors the ADA and applies to Wisconsin employers. In some instances, the WFEA is broader than the federal statute. It doesn’t follow the essential job functions analysis and also may require you to do more for an employee before it’s considered an undue hardship.
Elizabeth C. Stephens is an attorney with Axley Brynelson, LLP in Madison, Wisconsin. You can reach her at estephens@axley.com.