In the times before COVID-19, there were people (like the author) who telecommuted, but we were definitely in the minority. Now, thanks to the pandemic, many more people have been working remotely, and doing so successfully. And according to some new EEOC Guidance, successful telecommuting could be considered something of a trial run for those employees who ask to work remotely after the pandemic as a reasonable accommodation under the Americans With Disabilities Act (ADA).
This is a new Q & A from the EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws:”
Q: Assume that prior to the emergence of the COVID-19 pandemic, an employee with a disability had requested telework as a reasonable accommodation. The employee had shown a disability-related need for this accommodation, but the employer denied it because of concerns that the employee would not be able to perform the essential functions remotely. In the past, the employee therefore continued to come to the workplace. However, after the COVID-19 crisis has subsided and temporary telework ends, the employee renews her request for telework as a reasonable accommodation. Can the employer again refuse the request? (9/8/20; adapted from 3/27/20 Webinar Question 22)
A: Assuming all the requirements for such a reasonable accommodation are satisfied, the temporary telework experience could be relevant to considering the renewed request. In this situation, for example, 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 requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.
In a nutshell: if an employee with a disability had requested telecommuting as a reasonable accommodation before COVID-19, and that request was denied on the grounds that the employer did not think telecommuting would be workable, and then that employee successfully telecommutes during the pandemic, now the employer may no longer have grounds to deny the telecommuting as a reasonable accommodation after all of this pandemic stuff is over. Why? Because the pandemic telecommuting operated as a “trial run” that showed that the employer’s initial concerns about teleworking may be unfounded. At a minimum, the employer cannot simply deny the request to work remotely on the ground that it was denied previously. Instead, the employer must work through the interactive process with the employee to determine what accommodation is reasonable.
Although I am always reminding employers to be consistent in their treatment of employees, this is an exception to that rule. An employer may need to treat a disabled employee differently from other employees because the disabled employee needs accommodations that other employees do not. The interactive process by which an employer, the disabled employee, and the employee’s health care provider discuss and decide upon a reasonable accommodation requires an individualized assessment of the employee’s abilities and needs.
The takeaway: The duty to provide reasonable accommodation is a fundamental statutory requirement under the ADA. An employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Similarly, the employer should act promptly to provide the reasonable accommodation. Unnecessary delays can result in a violation of the ADA.
Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at firstname.lastname@example.org.
©2020 Kathleen J. Jennings
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