By Rob Gilmore & Alexis Preskar
As employers begin reopening workplaces, the EEOC has come out with new guidance on providing telework options. The specific question asked for guidance if an employer had allowed telework to slow the spread of COVID but was now reopening the workspace. In that case, does an 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?”
The EEOC says no. Employers do not have to automatically grant this option and, as always, have a right to understand both the limitation requiring the accommodation and other possible accommodations. So, if an employee does not have a disability-related limitation, but merely prefers to work remotely, employers do not have to accommodate the request under the ADA. Similarly, if an employee does have a disability-related limitation, the employer can offer other alternatives, such as working at off hours, rather than automatically resorting to remote work.
The EEOC also highlighted that employers may reassess situations to address essential functions. For example, if an employer allowed remote work to slow COVID and in the process excused the performance of an essential function of the job, the employer can reinstate that essential function – even if it would eliminate the option to work remotely. The EEOC emphasized that “[t]he ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.”
However, employers should consider the possibility of remote work for employees who have shown they can complete all essential functions of the job remotely. For example, an employee requested telework as an accommodation pre-COVID and was denied out of concern they could not complete all essential functions. The employee has been working remotely because of COVID and has completed all essential functions of their role. In that case, employers should consider the recent performance in deciding whether to allow remote work to continue since the employee has a demonstrated history of successful telework. As the EEOC noted, these are fact-specific inquiries and employers should work closely with employees to understand the limitations, options, and the job’s essential functions.
Of course, beyond the specific legal requirements, employers also need to consider employee morale when deciding whether to continue allowing telework. If an employee can complete the essential functions of their job from home, employers should consider allowing remote work to curb the spread of coronavirus, promote employees’ safety, and in light of the continuing difficulty of obtaining childcare, especially as schools resume remotely. While many were forced into remote work overnight, some companies are finding it is a good fit for their workplace and have decided to offer it on a permanent basis. Again, these decisions are all fact-specific, but employers should make sure they stay abreast of EEOC guidance and rules as the country navigates working through the pandemic.
We will continue to monitor the EEOC’s guidelines and other rules that impact employers. If you have questions on how to handle the transition back to on-site work, please contact Rob Gilmore (rsg@kjk.com, 216.736.7240), Alexis Preskar (avp@kjk.com, 614.427.5748) or any of KJK’s Labor & Employment professionals.