While many offices are reopening, not all workers are comfortable returning to work right now. The Equal Employment Opportunity Commission (EEOC) recently issued guidance regarding when employers will be required to grant telework accommodations under the Americans With Disabilities Act (ADA).

Accommodations Under the ADA

Title I of the ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment. In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.

Employers do not have to grant a request for an accommodation when doing so would cause an undue hardship.  A determination of undue hardship should be based on several factors, including:

  • The nature and cost of the accommodation needed;
  • The overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
  • The overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
  • The type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; and
  • The impact of the accommodation on the operation of the facility

EEOC Guidance on Telework Requests

Generally, an employer must modify its policy concerning where work is performed if such a change is needed as a reasonable accommodation, but only if this accommodation would be effective and would not cause an undue hardship. The EEOC recently updated its guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to address accommodation requests to work from home in light of COVID-19.

The EEOC guidance advises that when an employer reopens the workplace and recalls employees to the worksite, the employer does not 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. “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,” the guidance states. “Or, 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.”

The EEOC further advises that the ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability. “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 guidance states.

The EEOC guidance further states 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 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.” As emphasized by the EEOC, these are fact-specific determinations. “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 guidance advises.

Finally, the EEOC noted that the rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. “Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted,” the guidance states. Going forward, the EEOC encourages employers and employees to use interim solutions to enable employees to keep working as much as possible.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Michael Sheppeard, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.