November 10th, 2020
Working From Home as a Reasonable Accommodation After COVID-19
By Kevin Rivera on April 23rd, 2021
In March 2020, businesses across the country had no choice but to shutter their workplaces and permit their employees to work from home (also called “telecommuting” or “teleworking”). With vaccine distribution ramping up and government restrictions loosening, employers are starting to bring their employees back to work.
Now that many employers have been able to conduct business with a telecommuting workforce for the last year, many employers are grappling with the question of whether they will ever be able to deny an employee the ability to work from home as a reasonable accommodation in the future.
For background, the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) require employers to provide a reasonable accommodation to employees with a physical or mental disability in order to carry out their “essential job functions” as long as it does not cause “undue hardship” to the employer. Pre-COVID, many employers denied an employee’s request to work from home on the grounds that coming into the workplace was an “essential job function,” and thus, working from home would cause an undue hardship.
The Equal Employment Opportunity Commission (EEOC) has advised that employers who let employees telecommute because of COVID-19 do not have to automatically permit working from home as an accommodation to every employee with a disability who requests to continue the arrangement.* If there is no disability-related limitation that requires teleworking, the employer does not have to provide it as an accommodation. For example, if an employee is hesitant to come into the workplace due to fears of contracting COVID-19 there is no need to consider granting the request.
However, if an employee requests to work from home based on having a disability, you will need to engage in the “interactive process” to determine (1) if the employee has a covered disability, (2) what the employee’s limitations are, and (3) what other accommodations, if any, can be provided. If there is another accommodation available that will permit the employee to perform the work at the worksite, the request to telecommute may be denied.
Notably, when employers permitted employees to work from home, whether they realized it or not they often changed one or more of the job’s “essential functions.” For example, employers may have accepted different levels of productivity or lightened employee workloads. The EEOC advised that to the extent an employer chose to excuse an employee from performing one or more essential functions in order to telecommute, 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 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, or that telework is always a feasible accommodation, or that it does not pose an undue hardship.
An employer has no obligation under the ADA or FEHA to refrain from restoring some or all of an employee’s essential functions at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations against these restored job functions.
Importantly, when denying a request to work from home, 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 its operations.
Notwithstanding the above guidance, the EEOC also advised that past telework experience could still be a relevant factor when considering a request for telework from an employee with a disability. As with any request for a reasonable accommodation, the determination of whether any particular accommodation can be granted should be considered on a case-by-case basis in light of the particular circumstances.
* Although EEOC guidance does not have the force of law, it can nonetheless be reasonably relied upon.
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