During the pandemic and as employees are asked to return to the workplace, employers have received numerous requests for accommodations due to employees’ disabilities. One of the most common requests is the ability to telework or continue teleworking. In this pandemic, if an employee with a disability is at higher risk of contracting COVID-19 and asks to telework to reduce his/her exposure, the employer should consider the request under the Americans with Disabilities Act (ADA), as teleworking is considered a reasonable accommodation.
A recent Equal Employment Opportunity Commission (EEOC) lawsuit against a Baltimore company is a reminder that employers should engage in the interactive process to keep qualified individuals with disabilities working.
A sales administrator who worked in Design and Integration’s Baltimore headquarters requested to telework one day per week for three or four weeks as a reasonable accommodation for her disability of anxiety and depression. Her duties included researching new projects, reviewing online job applications and conducting telephone interviews. Design and Integration refused to grant this accommodation even though she could perform her duties remotely, and the company allowed other employees to telework. Instead, the company fired the sales administrator and said it would not have hired her had it known about her anxiety and depression. Such alleged conduct violates the ADA, which prohibits discrimination based on disability.
The ADA also requires employers to reasonably accommodate an individual’s disability unless the employer can prove that doing so would be an undue hardship. The employee requested telework for a brief time period, and the employer already permitted others to telework. It was difficult for the EEOC to see that allowing the employee to telework caused the company an undue hardship. Employers should engage in the interactive process to try to keep qualified individuals with disabilities working. It is against the law to terminate someone simply because she requested a reasonable accommodation for her disability.
The ADA does not require an employer to offer a telework program to all employees. However, if an employer does offer telework, it must allow employees with disabilities an equal opportunity to participate in such a program.Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework. However, an employer is not obligated to adopt an employee’s preferred or requested accommodation and may instead offer alternate accommodations as long as they would be effective.
How should an employer determine whether a particular job can be performed at home?
An employer and employee first need to identify and review all of the essential job functions. The essential functions or duties are those tasks that are fundamental to performing a specific job. An employer does not have to remove any essential job duties to permit an employee to work at home. However, it may need to reassign some minor job duties or marginal functions (i.e., those that are not essential to the successful performance of a job) if they cannot be performed outside the workplace and they are the only obstacle to permitting an employee to work at home. If a marginal function needs to be reassigned, an employer may substitute another minor task that the employee with a disability could perform at home in order to keep employee workloads evenly distributed.
After determining what functions are essential, the employer and the individual with a disability should determine whether some or all of the functions can be performed at home. For some jobs, the essential duties can only be performed in the workplace. For example, food servers, cashiers, and truck drivers cannot perform their essential duties from home. But, in many other jobs some or all of the duties can be performed at home.
Several factors should be considered in determining the feasibility of working at home, including the employer’s ability to supervise the employee adequately and whether any duties require use of certain equipment or tools that cannot be replicated at home. Other critical considerations include whether there is a need for face-to-face interaction and coordination of work with other employees; whether in-person interaction with outside colleagues, clients, or customers is necessary; and whether the position in question requires the employee to have immediate access to documents or other information located only in the workplace. An employer should not, however, deny a request to work at home as a reasonable accommodation solely because a job involves some contact and coordination with other employees. Frequently, meetings can be conducted effectively by video conferencing or telephone and information can be exchanged quickly through e-mail.
If the employer determines that some job duties must be performed in the workplace, then the employer and employee need to decide whether working part-time at home and part-time in the workplace will meet both of their needs. For example, an employee may need to meet face-to-face with clients as part of a job, but other tasks may involve reviewing documents and writing reports. Clearly, the meetings must be done in the workplace, but the employee may be able to review documents and write reports from home.
Employers should review and update their job descriptions and the essential functions of those job positions. Employers and supervisors should be trained in recognizing when an employee is requesting a reasonable accommodation and how to properly engage in the interactive process. Especially during the COVID-19 pandemic, employers should be reminded that EEOC guidance and case law established that telework can be a reasonable accommodation. Please contact us for review of your policies and practices as well as any assistance in COVID 19 accommodations requests.
For more information, contact the Davis, Agnor, Rapaport & Skalny attorney with whom you typically work, or one in our Labor & Employment Practice Group.
