EEOC: In the Post-COVID-19 Era, Remote Work Not Automatically a Reasonable Accommodation

Foley & Lardner LLP

Foley & Lardner LLPOn September 8, 2020, the Equal Employment Opportunity Commission (EEOC) released guidance stating that businesses will not be required to automatically allow remote work as a reasonable accommodation under the Americans with Disabilities Act (“ADA”) as the threat of COVID-19 dissipates. 

Under Title I of the ADA, employers must provide qualified employees with disabilities with reasonable accommodations to do their jobs, except when such accommodation would cause an undue hardship.  An adjustment that eliminates an essential function or fundamental duty of a position is not considered a reasonable accommodation. 

When COVID-19 forced businesses to shift to remote operations, many employers were anxious that temporarily eliminating essential functions of certain employees’ jobs during the remote work period might make it impossible to demand full performance of their duties once the remote work period ended.  The EEOC addressed this exact issue and said, “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 keeping them safe from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”  The EEOC went on to say that whether or not remote work is a reasonable accommodation remains a fact-specific determination and the usual ADA rules still apply. 

While this new guidance suggests that the pre-COVID-19 standards regarding reasonable accommodations continue to apply to teleworking, employers should keep in mind that the EEOC issued further guidance that suggests a worker’s ability to work remotely during COVID-19 may be relevant in situations where an employee’s request for remote work was denied prior to COVID-19.  The commission said, “In this situation, for example, the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information. As with all accommodation requests, the employee and the employer should engage in a flexible, cooperative interactive process going forward if this issue does arise.”

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