By / Sarah Capelli
A months-long experiment with telework began with the COVID-19 pandemic, and about half of employed adults currently work from home. Employers hoping to resume in-person operations as soon as they can safely transition back to the office may wonder if they are required to continue telework for employees asking for a reasonable accommodation.
Thanks to new guidance from the EEOC published in September 2020 (see D.15-D.16), employers can rest assured that temporary accommodations made in response to COVID-19 do not automatically entitle employees to their requested accommodation. However, as with all reasonable accommodation inquiries, employers must engage in an interactive process with each employee on an individual basis.
If an employee comes to you and says they have a disability and asks to telework as an accommodation, your initial response will depend on the obviousness of the employee’s need and the disability-related limitation that necessitates an accommodation. In most situations, you should enlist the employee in getting information from their health care provider to verify the employee’s medical condition and work limitations. Attach a current job description to the form that lists the essential job functions for the employee. Consider asking the health care provider specific questions about the effectiveness of a remote arrangement, possible alternatives, and how long the telework accommodation would need to last.
An accurate, up-to-date job description is vital in assessing whether telecommuting is a reasonable accommodation for an individual employee. In updating a job description, clearly communicate the essential functions for the job and be careful not to add new requirements that were not already part of the employee’s job. (For example, do not add new operational duties like performing worksite inspections that require the employee to be on-site or it will likely be viewed as retaliation.) If physical presence at the worksite is essential, however, make sure it is listed on the job description and be prepared to justify why.
- Does the employee need to be onsite for adequate supervision?
- Does the position require face-to-face interaction to coordinate work?
- Does the employee need to be available to interact unscheduled and in-person with outside colleagues, clients, or customers?
- Does the position require immediate access to documents, information, or equipment only available in the workplace?
- Must the position secure confidential and proprietary information in a specific way?
Understandably, employers overlooked some of these functions in response to COVID-19, but the EEOC specifically noted that temporarily excusing an essential job function (like physical presence) in these circumstances does not require the employer to continue doing so. Take note of what did not work during your COVID-19 response. What tasks fell by the wayside that need to be restored and why? Updating the job description best informs employees about their essential job functions going forward.
Importantly, even after the employee verifies their medical condition and identifies their work limitations, the employer may select any effective reasonable accommodation and does not need to grant the accommodation the employee prefers. What is effective will depend on individual circumstances, but possible alternatives to telework include offering an alternative business location (for employers with multiple sites), flexing the employee’s schedule to an earlier or later start time, offering a compressed workweek, allowing the employee to split their time between the worksite and home, etc.
The telework experiment prompted by COVID-19 did significantly alter one aspect of the reasonable accommodation analysis. In the past, employers often argued that telework arrangements were an undue hardship that legally excused them from granting an employee’s request. Not too long ago, employees often did not have enough broadband at home to support online operations and working from home required expensive equipment. With new technology that facilitates online meetings and more efficient, less costly office equipment, employers will have greater difficulty establishing the accommodation required significant difficulty or expense.
In a post-pandemic world, employers who return to in-person business operations do not need to automatically grant individual requests from disabled employees to telework but instead should carefully consider each request. The employer begins this process with the traditional interactive process and need not fear that temporary operational practices have locked employers into a long-term business model they did not intend. ■
