Many of my clients are in the same boat. They would not have dreamed of a work-from-home arrangement (permanent or even temporary) for any of their employees before March 2020. Then, the world turned upside down, and just about everybody figured out how to make telework work.

It’s now been six years since that time, and most employees have returned to the office. However, one of the primary lingering questions for employers remains – Am I required to provide telework as a reasonable accommodation? Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodations to employees with disabilities to assist them in being able to complete the essential functions of their position. What makes the proposed accommodation reasonable? So long as it doesn’t present an undue hardship on the employer. That begs the question -- how can a proposed accommodation (in this case, telework) be an undue hardship if the employer provided it in the past?

The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Office of Personnel Management (OPN) have issued a joint FAQ tackling that question for federal agencies. While the FAQ is limited to the federal sector, the EEOC’s interpretation of the ADA is likely to provide some guidance for how the agency will view this issue even in the private sector.

The FAQ starts by defining “telework” practically as work performed away from the worksite and then distinguishes three common forms: full-time telework, recurring/routine telework (a regular schedule but less than full time), and situational telework (e.g., a potential reasonable accommodation). That typology matters because employers are encouraged to be precise about what they are granting: a permanent location change, a partial schedule change, or a short-term bridge.

Going off that point, a central theme of the FAQ is reassessment. Employers may revisit previously granted recurring or full-time teleworking accommodation situations and replace them with an effective alternative if circumstances, operational needs, job requirements, or the employee’s condition have changed. In other words, what was once reasonable is not always going to be reasonable. At the same time, the FAQ warns against employers taking a “blanket approach” and rescinding or denying all accommodations or forcing employees to reapply for an accommodation for no reason. Under the ADA, one size rarely fits all.

Perhaps most importantly, the FAQ recognizes that pandemic-era telework did not permanently rewrite essential job functions:

“The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19... 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.”

Again, though, caution – the best interpretation of this is one of restraint. Employers should feel emboldened to state that regular attendance, in person, is an essential function of the job if that is true. So, while the argument of “You did it during COVID so it can be done” may not hold much water, employers still will be expected to demonstrate just how their present operations and present needs necessitate in-office work.

This issue is not going away any time soon. If you have any employees that telework, contact an RKW Employment Attorney to learn more about your rights and develop a plan.