Telecommuting Employees and COVID-19: Part 3

Americans with Disabilities Act

In the third and final installment of our telecommuting series, we will discuss the Americans with Disabilities Act (ADA) and its application to telecommuting before and after the COVID-19 pandemic. 

The ADA prohibits discrimination against people with disabilities across several areas, including employment. The ADA protects individuals with a disability, which the act defines as a physical or mental impairment that substantially limits one or more of the individual’s major life activities. In certain circumstances the ADA’s protection extends to parents or those associated with individuals with disabilities and individuals subjected to retaliation for assisting people with disabilities in asserting their rights under the ADA. 

Title I of the ADA: 

• Requires covered employers to provide reasonable accommodations for applicants and employees with disabilities and creates a cause of action for failure to accommodate; 
• Prohibits discrimination on the basis of disability in all aspects of employment; and 
• Regulates medical examinations and inquiries. 

Title I of the ADA covers employers with 15 or more employees, and all state and local governments regardless of size. A reasonable accommodation is a modification or adjustment to the job application process, work environment, or the way a position is customarily performed that enables an individual with a disability to enjoy equal employment opportunities. For example, an employer might make existing facilities accessible to individuals with disabilities.  

An individual must request an accommodation by letting their employer know that he or she needs an adjustment or change at work for a reason related to a medical condition. This request does not need to be in writing, and a family member, friend, health professional or other representative may make the request on behalf of the disabled individual. Once the request has been made, the ADA requires the employer and individual to engage in an informal process to clarify the individual’s needs and identify the appropriate reasonable accommodation. The employer has ultimate discretion to choose between alternative effective accommodations – employers are free to choose a less burdensome or less expensive accommodation as long as it is effective.

Prior to the COVID-19 pandemic, telecommuting could be a reasonable accommodation where the individual’s disability prevented successful performance of his or her job at the workplace, and the job (or parts of the job) could be performed at home without causing significant difficulty or expense to the employer.​ There is no bright-line test used to make this determination; requests to work at home must be considered on an individual, case-by-case basis. (1) An employer should consider the following factors: 

• Can the individual perform all essential job functions remotely? 
• Do the employee’s duties require access to tools, equipment or documents that are not accessible outside the workplace? 
• Is face-to-face interaction with other employees, outside colleagues, clients or customers a necessary part of the individual’s job? 
• Can the employer adequately supervise the employee remotely? 
• Are coworkers with similar roles and responsibilities allowed to telecommute? 
• Has the employee teleworked during core business hours in the past without any attendance issues or decline in work product? 
• Does an accurate, up-to-date job description list in-person presence as an essential job function? 
• Can the employee perform some duties on-site and some at home, making part-time telecommuting an effective reasonable accommodation? 

In response to COVID-19, the Equal Employment Opportunity Commission (EEOC) provided additional guidance for employers considering telecommuting as a reasonable accommodation: 

• Impact of past telework on accommodation. Remote work performed due to the COVID-19 pandemic should be considered as it could serve as a trial period indicating whether an employee with a disability could satisfactorily perform all essential functions while working remotely.  
• Automatic approval is not required. Employers do not have to approve requests to work from home, even if the employee has already been working from home successfully prior to returning to on-site work. The key consideration remains whether an employee can perform all the essential functions of their job at home, even if they were temporarily excused from doing so during the pandemic. The ADA does not prohibit an employer from choosing to restore all of an employee’s essential duties at any time. 
• Employers must consider the request regardless of when it is made. Employers must consider requests to work remotely, even if the employee has already returned to on-site work after working from home for a period due to the pandemic. The EEOC acknowledged that the pandemic might result in excusable delays in the interactive process and the provision of accommodations, but employers should continue to act expeditiously. 
• Accommodating at home. Previously established on-site accommodations are not always transferable. An accommodation which is feasible in the workplace may pose an undue hardship in a remote work environment. The EEOC requires employers and individuals to utilize creativity and flexibility when considering reasonable accommodations for remote work. (2) 

Many employers may continue to require employees to work from home for some time due to the pandemic. As telework becomes the new normal, and as some employees return to work, employers will likely see an increase in requests for remote work as a reasonable accommodation. While caselaw and the EEOC provide valuable guidance for employers considering reasonable accommodation requests, employers who wish to decline an employee’s request to work remotely as a reasonable accommodation should first consult legal counsel to ensure compliance with the ADA. 

Kuiper Law Firm, PLLC understands the demands employers face as they navigate compliance with state and federal employment laws. If you have questions about the information in this article, or how an attorney can assist you with reasonable accommodation requests, do not hesitate to contact us.   

The content of this publication and any attachments are an advertisement and are not intended to be and should not be relied upon as legal advice or to create a lawyer-client relationship.   

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1. Morris-Huse v. Geico, 2018 U.S. Dist. LEXIS 14284, at *25 (M.D. Fla. Jan. 30, 2018) 
2. “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, EEOC Technical Assistance Questions and Answers, Sept. 8, 2020)