How the Pandemic-Driven Telework Experiment May Impact an Employer’s Duty to Accommodate
The questions of when or in what jobs telework will constitute a reasonable accommodation under the Americans with Disabilities Act (ADA) are not new ones. However, the data—the actual results of a widespread teleworking experiment or trial triggered by pandemic-related restrictions—are new.
As governmental restrictions have eased, many businesses have reopened in the past several months and begun urging or requiring workers to return. As the return to the workplace momentum builds, employers are starting to confront situations where employees with underlying health conditions are deemed to be at heightened risk for complications relating to COVID-19, and are therefore advised by a medical professional to continue working from home. Under new guidance from the Equal Employment Opportunity Commission (EEOC), the data from this massive teleworking experiment will, in fact, be highly relevant to whether remote work constitutes a reasonable accommodation in the future.
While the EEOC’s latest guidance states that “the temporary telework experience could be relevant” (emphasis supplied) when considering a request for continued remote work, it is difficult to imagine a scenario in which the results of a trial run would not be an extremely significant component of the analysis. Without question, if an employee has been effectively performing their job from home, and the job remains the same in the future, it will be difficult for the employer to contend that in-person attendance is an essential function of that particular job.
Alternatively, a telework trial could highlight those functions of the job that actually do require in-person attendance. It is well-settled, and the EEOC has emphasized again in its latest guidance, that an employer need not eliminate an essential function of the job in order to accommodate a disabled employee. Nor must employers adopt less stringent productivity requirements. If an employer can demonstrate that essential functions went undone, or productivity slumped during pandemic-driven telework, a court will be less likely to find telework to be a reasonable accommodation for an employee who is unable to come to the workplace because of a disability.
As is so often the case in the realm of employment law, documentation matters. Businesses that experienced telework as a largely failed experiment (altogether or in certain positions) should take the time now to reflect on and record exactly what went wrong, went undone, or generally suffered when employees did their jobs from home. Not only will this process of reflecting and documenting allow a business to make the next telework trial more successful if or when one is required, but it will also serve as material evidence in the event the employer is forced to defend a disability discrimination claim after denying an employee’s request to telework in the future.