EEOC Issues New COVID-Related Guidance on Teleworking Arrangements
In the early stages of the COVID global pandemic, employers were forced to immediately adapt from on-site to remote work arrangements. However, as employers are reopening and recalling employees to return onsite, the question is whether the employer must automatically grant or extend teleworking as a reasonable accommodation to every employee with a disability who requests to continue the arrangement.
On September 8, 2020, the EEOC issued updated guidance advising that the answer is “No.” The EEOC explained that 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. Additionally, 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 as to whether a teleworking arrangement makes sense. 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.
The EEOC also noted that a remote working arrangement due to COVID may be relevant for situations where, pre-pandemic, an employee requested a teleworking accommodation and it was denied. If this employee renews his/her request, the EEOC opined that the employee’s ability to handle a remote arrangement during COVID may be a factor into the ultimate decision as to whether such an arrangement is reasonable since the employee has demonstrated he/she could satisfactorily perform all essential functions while working remotely.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.