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Telework During Pandemic Does Not Set Precedent

September 9, 2020

Laura L. Rubenstein

Guidance issued by the Equal Employment Opportunity Commission (EEOC) on Tuesday, September 8, 2020 addressed whether telework was here to stay as a workplace accommodation. Simply put, the EEOC said that employers that provided telework during the COVID-19 pandemic are not automatically required to give disabled workers that same accommodation once the virus becomes less of a threat.

The Americans with Disabilities Act (ADA) mandates that employers provide workers“ reasonable accommodations” to allow them to perform their job duties, and while telework sometimes fits meets that interpretation, the EEOC has made clear that a temporary shift online amid this extraordinary health crisis does not force a company to accept all remote work requests down the road.

Here is the exact excerpt:

Question: Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation? (9/8/20; adapted from 3/27/20 Webinar Question 21)
Answer: No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.
To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.
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, or otherwise chose to permit telework, 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. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.

To discuss your specific workplace concerns with an employment attorney, contact our team of experienced professionals at LRubenstein@RKWlawgroup.com or 443-379-4013.

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