With the ongoing pandemic, a lot of employees (and even some employers) want permanent telework to be the new norm. But with vaccines now widely available and many restrictions being lifted, some employees are now hesitant to go back in the workplace for fear of exposure to the virus. Is that a legitimate reason to request permanent telework?
One common post-pandemic return question being raised is can Americans with disabilities demand from their employers that they work from home—forever? Or at least until this global pandemic is over?
For employees with disabilities, the Americans with Disabilities Act (ADA) may afford an answer. Basically, ADA prohibits employers from discriminating against employees on the basis of a disability. And relevant to telework, an employer with 15 or more employees must provide "reasonable accommodations" to its employees with disabilities under the ADA.
Many employees feel that, in light of COVID-19, it is "reasonable" that they be allowed to work from home or telework permanently, especially if they have underlying medical conditions making them susceptible to the virus, or if they have a loved one who is particularly vulnerable to it. There is, however, a lot of gray area when it comes to telework as a reasonable accommodation.
So, what exactly is reasonable accommodation? Under the Americans with Disabilities Act (ADA), reasonable accommodation means “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.”
An accommodation is "reasonable" if it seems (somewhat redundantly) reasonable on its face, feasible, or plausible. It must also be effective in meeting the needs of the employee. This should enable the employee with disability to perform the essential functions of the position, while at the same time having an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy.
Americans with disabilities that are allowed to permanently telework can help design their home work environment to suit their particular needs. This enables higher productivity and job satisfaction.
But employers are not required to grant requested accommodations automatically. First off, not all jobs can be done at home. Second, there must be a disability-related limitation on the part of the employee in the performance of his essential job functions.
Employers may grant permanent telework (or telecommuting) setup as a reasonable accommodation to an individual with a disability if: (1) a person's disability prevents successfully performing the job at his workplace and, (2) the job can be performed at home without causing significant difficulty or expense to the employer.
Employers, of course, can accommodate work from home setup requests so long as it is reasonable and if it does not cause undue hardship on their part. The Equal Employment Opportunity Commission (EEOC) also takes this position, stating that this is provided for under ADA.
Some of the more common reasons Americans with disabilities may request working from home as an accommodation are:
Difficulty commuting from and to work due to disability
Limited access to accessible parking
Environmental issues (e.g., construction activities, exposure to chemicals/irritants, temperature sensitivity, etc.)
Lack of privacy to manage personal/medical needs, like using the restroom or receiving treatment
Rigid work schedule
Exposure to viruses and bacteria
If your company already offers telework as a benefit to some employees, your employer should treat you the same as everyone else.
If your company does not, then you must do the following in order to be allowed to work from home permanently as a reasonable accommodation:
1. Make a request. This may be done during the application process or during your employment. It does not have to be in writing (though your friendly, neighbored employment lawyer would prefer that it is). Really, any modes of communication are acceptable.
The employer, however, is not precluded from creating a formal procedure or a standard form for this very purpose (for example, here's Wells Fargo's accommodation request form).
2. Provide reasonable documentation showing that your condition meets the ADA definition of disability. Being an American with disability is a requirement to be entitled to a reasonable accommodation. There are instances, however that one’s disability is not obvious, and so the employer may ask for “reasonable documentation” about the disability and its functional limitations in relation to your job. Reasonable because this shall be limited to document or information related to the disability only.
The employer has to determine if the disability meets the ADA definition which is: (1) a person who has a physical or mental impairment that substantially limits one or more major life activities; (2) a person with a record of a physical or mental impairment that substantially limits one or more major life activities; or (3) a person who is regarded as having a physical or mental impairment that substantially limits one or more major life activities.
Alternatively, your employer may opt to simply discuss the disability and the limitations it imposes in your work functions. If the disability is obvious, documentation may not be necessary.
3. Engage in an “interactive process” with your employer to identify needs and appropriate reasonable accommodation. The employer may ask you questions on what is needed for you to be effective at your job and at the same time accommodating your disability. This is also the part where your employer will assess if your request would cause undue hardship on the business operations.
“Undue Hardship” means significantly difficult or expensive, on the part of the employer, in providing a specific accommodation.
During the interactive process, the employer may negotiate the accommodation you are asking for. Employers are free to suggest and choose the less expensive or burdensome option for them as long as it is effective. For instance, employers may haggle for a scheduled office work and remote work setup in a weekly or bi-weekly basis. Your employer may also find other accommodations that are reasonable and effective other than working from home. The employer may even transfer you to a job vacancy whose role does not require you an accommodation. This choice is ultimately left under the discretion of the employer. At the Employment Law Center of Maryland, we often engage in these negotiations on behalf of our clients with disabilities.
This is also the part wherein the employer determines if the job can be performed at home. In identifying this, what is important is that all essential work functions can be done at home. For smaller or one-off tasks, the employer may reassign them to another employee. Any changes to the job functions, however, do not mean that the job description is permanently changed. This is only a means to accommodate the limitations of the disability.
Employers may sometimes deny the request for reasonable accommodation if the job description itself requires a person to be in the actual work place (e.g., waiters, delivery persons, service crews).
Otherwise, it is required that they identify the undue hardship they see as the reason for the denial. This may be particularly hard for them since the pandemic has given us many true-to-life situations that certain jobs can be effectively and efficiently done in a work from home setting.
The employer's obligation of reasonable accommodation to its American with disabilities employees is never black and white—it is always on a case-by-case basis. Every situation must be assessed on its own, balancing an analysis of both your disability and the essential functions of the role. There are certainly a lot of new questions being raised in courts around the country as to just how reasonable permanent telework is, and courts must strike a balance between protecting the rights of employees with disabilities and the rights of the employer to hire and retain effective workers. If you are facing a situation like this, and it gets complicated, always talk to an ADA lawyer.
courts must strike a balance between protecting the rights of employees with disabilities and the rights of employers to hire and retain effective workers
It can't be denied that the pandemic has paved the way to many new "norms," most especially in the work setting. Technological advancements have help made this endeavor possible. With that in mind, employers are and will be receiving a lot of requests to work from home. Smart employers should consider having an established procedure for addressing ADA-related requests for telework accommodations. Remote work has its own pros and cons, but when it helps Americans with disabilities more fully participate in the workforce, this is something that our legal system should embrace with open arms.
COVID-19 may have normalized telework as a reasonable accommodation, but there are still a lot of open questions as courts catch up to reality. If you have questions, you should always contact a competent and compassionate ADA lawyer.