COVID-19 may have “forever changed” how teleworking is viewed as an accommodation under the ADA, but the ADA’s basic principles are still intact, an employee-side attorney noted during a November American Bar Association conference. It’s particularly important to keep that in mind now, she warned, because of “flexibility fatigue,” with exasperated managers demanding more boundaries and structure to hybrid and remote work.
When an employer recalls employees back to the worksite, the ADA doesn’t require it to automatically grant an employee’s accommodation request to continue teleworking, according to the EEOC guidance on COVID-19, the ADA and the Rehabilitation Act. For example, if the employer can effectively address the need with another form of reasonable accommodation at the worksite, it can choose that alternative, the guidance says.
The starting point is the interactive process, where the employer and the employee engage in a “flexible, cooperative” exchange of information relevant to the request, the guidance points out. The employer is entitled to understand the disability-related limitation that requires remote work, and the interactive process is meant to help it understand this.
Also, employers don’t have to grant a request to work from home if it means removing essential job functions, the EEOC says. The interactive process helps the parties identify these functions, an EEOC Q&A on teleworking notes. For example, an essential function may require the employee to work in-person or on-site, a management-side attorney pointed out during the ABA conference.
Even as COVID-19 numbers subside, employers still need to be careful about the requests of employees who are immunocompromised and hesitant to return to the office, the employee-side attorney added.
This case is one that should create concern for employers now, an attorney told attendees at the Disability Management Employer Coalition’s annual conference in August, prior to the settlement. If an employee has been working remotely for any period of time, the employer will have a tough case denying their request for a reasonable accommodation to continue working remotely on the basis that all essential functions can’t be done, she said.
This content was originally published here.