November 23, 2020 4 minutes to read ∙ 1000 words

Will Working from Home Be a Reasonable Accommodation Post-COVID?

By Michelle Perez-Yanez

In early March of 2020, many employers were forced to send their employees to work from home. Employees didn’t know when they would be back, but they packed their things, set up an office in their homes, and started working. Across the country, employers experimented with some form of telework in an effort to keep their businesses afloat. As a result, employers were forced to accept different levels of productivity and change the definition of their employees’ “essential job functions” or else risk losing their businesses.

Employees are pointing to the quality of their work while at home to urge employers to continue allowing them to telework.

Employees are pointing to the quality of their work while at home to urge employers to continue allowing them to telework.

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As restrictions start lifting in different parts of the country, businesses are reopening and asking their employees to return. Now, employers are faced with the difficulty of asking employees to return to the office, conduct their previous duties, and produce the same level of productivity that existed before COVID-19. Inevitably, employers are receiving requests to continue working from home. Some employees don’t want to risk exposure to COVID-19, while others with underlying health conditions are being advised by their doctors to continue working from home. Employees are pointing to the quality of their work while at home to urge employers to continue allowing them to telework. This leaves employers who are trying to open their businesses with a complicated question: Is working from home a reasonable accommodation?

Under the Americans with Disabilities Act (ADA), an employer must provide a reasonable accommodation to an employee with a disability so long as the employee’s accommodation allows him or her to perform “essential job functions” and does not cause an “undue hardship” to the employer, which means “significant difficulty or expense.” In a pre-COVID-19 world, employers often rejected the idea of telework as a “reasonable accommodation” and cited that it would not allow for employees to conduct their “essential job functions” and thus would cause an “undue hardship” on the company. However, in a post- COVID-19 world, this defense becomes harder to establish as many of employees were allowed to perform the majority of their tasks from home.

On September 8, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance for employers receiving requests from employees to continue remote working. The EEOC clarified that employers are not required to provide telework as an accommodation to employees who have no disability-related limitations. Thus, there is no recourse available for employees who want to remain teleworking in an effort to stay safe from COVID-19 or who are caring for family members who are at higher risk of severe illness from COVID-19 due to an underlying medical condition. Employers will only have to accommodate employees who themselves have disabilities.

Employees with disabilities who are being asked to return to work but want to continue teleworking will not automatically be granted telework as a “reasonable accommodation.” Instead, the parties will have to engage in the interactive process to find a “reasonable accommodation” that does not cause an “undue hardship” on the employer. The EEOC noted that “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 keeping them safe from COVID-19, or otherwise chose to permit telework, does not mean that [1] the employer permanently changed a job’s essential functions, [2] telework is always a feasible accommodation; or [3] that it does not pose an undue hardship.” The EEOC clarified that employers have no obligation to refrain from restoring duties they may have temporarily excused an employee from performing during the pandemic. Further, employers are not required to continue allowing any reduced productivity levels they may have allowed during the pandemic to accommodate employees with disabilities. Therefore, any request to continue teleworking as a “reasonable accommodation” must be determined under the traditional ADA guidelines of engaging in the interactive process.

However, the EEOC noted that an employer’s decision to allow employees to telework is relevant when engaging in the interactive process. Specifically, the EEOC provided guidance in instances where an employee was denied a request to telework prior to COVID-19 and was later allowed to telework during the pandemic. The commission found “the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new request in light of this information.”

The EEOC’s remarks place the burden on the employer to demonstrate that continued telework impairs the employee from performing essential job functions and places an undue hardship on the company. Employers will have to establish that essential job functions were halted by COVID-19 precautions the employer chose to enact or was forced to abide by due to state restrictions, and that the prolonged relaxation of those duties will place an undue hardship on the company.

Existing EEOC regulations define essential job functions as “fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. §1630.2(n)(1). These duties are defined by the employer and are refuted by the employee through litigation. The commission’s failure to provide guidance on the determination of the essential functions of a job continues to leave the door open for interpretation through litigation. This allows employees to cite to their time teleworking during the pandemic to support their request to continue teleworking as a “reasonable accommodation” despite the employer’s definition of an employee’s essential job functions.

This is a challenging time for both employers and employees as we all learn to navigate in a post-pandemic world. The EEOC’s guidance seeks to strike a balance between the needs of employers to reopen their businesses and the protections sought by employees with disabilities. The EEOC stresses that “in light of the circumstances that led the need for telework, employers and employees should both be creative and flexible about what can be done when an employee needs a reasonable accommodation for telework from home.”

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Michelle Perez-Yanez (michellepy@gruenberglaw.com) is an employment attorney at Gruenberg Law in San Diego, California. She specializes in plaintiff’s employment issues, including Private Attorney General Act, wage and hour, sexual harassment, and discrimination matters. In her spare time, she enjoys hiking and reading poems by Pablo Neruda.

Published in GPSolo eReport, Volume 10, Number 4, November 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.